EXHIBIT 4.1


 


Execution Copy


 


 


SEALY MATTRESS COMPANY


 


Company


 


 


Guarantors Named in Schedule I hereto


 


and


 


THE BANK OF NEW YORK TRUST COMPANY, N.A.


 


Trustee


 


Indenture


 


Dated as of April 6, 2004


 












 


$390,000,000


 


8.25% Senior Subordinated Notes due 2014


 

















 


Sealy Mattress Company*


 


Reconciliation and tie between Trust Indenture Act

of 1939 and Indenture, dated as of April 6, 2004


 


	
  Trust
  Indenture

  Act Section

  	
   

  	
  Indenture
  Section

  
	
   

  	
   

  	
   

  
	
  § 310(a)(1)

  	
   

  	
  608

  
	
           (a)(2)

  	
   

  	
  608

  
	
           (b)

  	
   

  	
  609

  
	
  § 312(a)

  	
   

  	
  701

  
	
  § 312(c)

  	
   

  	
  702

  
	
  § 313(a)

  	
   

  	
  703

  
	
           (a)(4)

  	
   

  	
  1008

  
	
           (c)(1)

  	
   

  	
  102

  
	
           (c)(2)

  	
   

  	
  102

  
	
           (e)

  	
   

  	
  102

  
	
  § 315(b)

  	
   

  	
  602

  
	
  § 316(a)(last
  sentence)

  	
   

  	
  101
  (“Outstanding”)

  
	
           (a)(1)(A)

  	
   

  	
  502,
  512

  
	
           (a)(1)(B)

  	
   

  	
  513

  
	
           (b)

  	
   

  	
  508

  
	
           (c)

  	
   

  	
  104(d)

  
	
  § 317(a)(1)

  	
   

  	
  503

  
	
           (a)(2)

  	
   

  	
  504

  
	
           (b)

  	
   

  	
  1003

  
	
  § 318(a)

  	
   

  	
  111

  



 












*                                         This reconciliation and tie shall not, for
any purpose, be deemed to be a part of this Indenture.


 


i

















 


TABLE OF CONTENTS*


 


	
  ARTICLE ONE

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  
	
   

  	
   

  	
   

  
	
  SECTION 101.  Definitions

  	
   

  	
  2

  
	
  “144A Global
  Note”

  	
   

  	
  2

  
	
  “Acquired
  Indebtedness”

  	
   

  	
  2

  
	
  “Act”

  	
   

  	
  2

  
	
  “Additional
  Notes”

  	
   

  	
  2

  
	
  “Adjusted
  Net Assets”

  	
   

  	
  3

  
	
  “Affiliate”

  	
   

  	
  3

  
	
  “Affiliate
  Transaction”

  	
   

  	
  3

  
	
  “Agent”

  	
   

  	
  3

  
	
  “Applicable
  Premium”

  	
   

  	
  3

  
	
  “Applicable
  Procedures”

  	
   

  	
  3

  
	
  “Asset Sale”

  	
   

  	
  3

  
	
  “Asset Sale
  Offer”

  	
   

  	
  4

  
	
  “Bankruptcy
  Law”

  	
   

  	
  4

  
	
  “Board
  of Directors”

  	
   

  	
  4

  
	
  “Board
  Resolution”

  	
   

  	
  5

  
	
  “Broker-Dealer”

  	
   

  	
  5

  
	
  “Business Day”

  	
   

  	
  5

  
	
  “Capital Stock”

  	
   

  	
  5

  
	
  “Capitalized Lease
  Obligation”

  	
   

  	
  5

  
	
  “Cash
  Equivalents”

  	
   

  	
  5

  
	
  “Change of
  Control”

  	
   

  	
  6

  
	
  “Change
  of Control Offer”

  	
   

  	
  6

  
	
  “Change of Control Payment”

  	
   

  	
  7

  
	
  “Change of Control
  Payment Date”

  	
   

  	
  7

  
	
  “Commission”

  	
   

  	
  7

  
	
  “Common Stock”

  	
   

  	
  7

  
	
  “Company”

  	
   

  	
  7

  
	
  “Company Request” or
  “Company Order”

  	
   

  	
  7

  
	
  “consolidated” or
  “Consolidated”

  	
   

  	
  7

  
	
  “Consolidated
  Depreciation and Amortization Expense”

  	
   

  	
  7

  
	
  “Consolidated Interest
  Expense”

  	
   

  	
  7

  
	
  “Consolidated
  Net Income”

  	
   

  	
  8

  
	
  “Contingent
  Obligations”

  	
   

  	
  9

  
	
  “Corporate
  Trust Office”

  	
   

  	
  9

  



 












*                                         This table of contents shall not, for any
purpose, be deemed to be a part of this Indenture.


 


ii

















 


	
  “Corporation”

  	
   

  	
  10

  
	
  “Covenant
  Defeasance”

  	
   

  	
  10

  
	
  “Credit
  Facilities”

  	
   

  	
  10

  
	
  “Custodian”

  	
   

  	
  10

  
	
  “Default”

  	
   

  	
  10

  
	
  “Defaulted
  Interest”

  	
   

  	
  10

  
	
  “Definitive
  Note”

  	
   

  	
  10

  
	
  “Depositary”

  	
   

  	
  10

  
	
  “Designated Non-cash
  Consideration”

  	
   

  	
  10

  
	
  “Designated Preferred Stock”

  	
   

  	
  11

  
	
  “Designated Senior
  Indebtedness”

  	
   

  	
  11

  
	
  “Disqualified
  Stock”

  	
   

  	
  11

  
	
  “Domestic
  Subsidiary”

  	
   

  	
  11

  
	
  “EBITDA”

  	
   

  	
  11

  
	
  “EMU”

  	
   

  	
  12

  
	
  “Equity
  Interests”

  	
   

  	
  12

  
	
  “Equity
  Offering”

  	
   

  	
  12

  
	
  “euro”

  	
   

  	
  12

  
	
  “Event of
  Default”

  	
   

  	
  13

  
	
  “Excess
  Proceeds”

  	
   

  	
  13

  
	
  “Exchange Act”

  	
   

  	
  13

  
	
  “Exchange
  Notes”

  	
   

  	
  13

  
	
  “Exchange
  Offer”

  	
   

  	
  13

  
	
  “Exchange Offer
  Registration Statement”

  	
   

  	
  13

  
	
  “Excluded
  Contribution”

  	
   

  	
  13

  
	
  “Existing
  Indebtedness”

  	
   

  	
  13

  
	
  “Fixed Charge Coverage
  Ratio”

  	
   

  	
  13

  
	
  “Fixed Charges”

  	
   

  	
  14

  
	
  “Foreign
  Subsidiary”

  	
   

  	
  14

  
	
  “Funding
  Guarantor”

  	
   

  	
  14

  
	
  “GAAP”

  	
   

  	
  15

  
	
  “Global
  Note Legend”

  	
   

  	
  15

  
	
  “Global Notes”

  	
   

  	
  15

  
	
  “Government
  Securities”

  	
   

  	
  15

  
	
  “guarantee”

  	
   

  	
  15

  
	
  “Guarantee”

  	
   

  	
  15

  
	
  “Guarantors”

  	
   

  	
  15

  
	
  “Hedging
  Obligations”

  	
   

  	
  15

  
	
  “Historical
  Adjustments”

  	
   

  	
  16

  
	
  “Holder”

  	
   

  	
  16

  
	
  “IAI Global
  Note”

  	
   

  	
  16

  
	
  “incur”

  	
   

  	
  16

  
	
  “incurrence”

  	
   

  	
  17

  
	
  “Indebtedness”

  	
   

  	
  17

  
	
  “Indenture”

  	
   

  	
  17

  
	
  “Independent Financial
  Advisor”

  	
   

  	
  17

  



 


iii

















 


	
  “Indirect
  Participant”

  	
   

  	
  18

  
	
  “Initial Notes”

  	
   

  	
  18

  
	
  “Initial
  Purchasers”

  	
   

  	
  18

  
	
  “Interest
  Payment Date”

  	
   

  	
  18

  
	
  “Institutional Accredited
  Investor”

  	
   

  	
  18

  
	
  “Investment Grade
  Securities”

  	
   

  	
  18

  
	
  “Investments”

  	
   

  	
  18

  
	
  “Issue Date”

  	
   

  	
  19

  
	
  “Legal
  Defeasance”

  	
   

  	
  19

  
	
  “Lien”

  	
   

  	
  19

  
	
  “Letter
  of Transmittal”

  	
   

  	
  19

  
	
  “Management
  Group”

  	
   

  	
  19

  
	
  “Maturity”

  	
   

  	
  19

  
	
  “Moody’s”

  	
   

  	
  19

  
	
  “Net Income”

  	
   

  	
  19

  
	
  “Net Proceeds”

  	
   

  	
  19

  
	
  “Non-payment Default”

  	
   

  	
  20

  
	
  “Non-U.S. Person”

  	
   

  	
  20

  
	
  “Note Register” and
  “Note Registrar”

  	
   

  	
  20

  
	
  “Notes”

  	
   

  	
  20

  
	
  “Obligations”

  	
   

  	
  20

  
	
  “Offering
  Circular”

  	
   

  	
  20

  
	
  “Officer”

  	
   

  	
  20

  
	
  “Officers’
  Certificate”

  	
   

  	
  20

  
	
  “Opinion
  of Counsel”

  	
   

  	
  21

  
	
  “Outstanding”

  	
   

  	
  21

  
	
  “Parent”

  	
   

  	
  21

  
	
  “Pari
  Passu Indebtedness”

  	
   

  	
  21

  
	
  “Participant”

  	
   

  	
  21

  
	
  “Paying Agent”

  	
   

  	
  22

  
	
  “Payment
  Blockage Period”

  	
   

  	
  22

  
	
  “Payment
  Default”

  	
   

  	
  22

  
	
  “Permitted
  Asset Swap”

  	
   

  	
  22

  
	
  “Permitted
  Holders”

  	
   

  	
  22

  
	
  “Permitted
  Investments”

  	
   

  	
  22

  
	
  “Permitted Junior
  Securities”

  	
   

  	
  24

  
	
  “Permitted
  Liens”

  	
   

  	
  24

  
	
  “Person”

  	
   

  	
  26

  
	
  “Predecessor
  Note”

  	
   

  	
  26

  
	
  “Preferred
  Stock”

  	
   

  	
  26

  
	
  “Private Placement Legend”

  	
   

  	
  26

  
	
  “QIB”

  	
   

  	
  26

  
	
  “Qualified
  Proceeds”

  	
   

  	
  26

  
	
  “Receivables
  Facility”

  	
   

  	
  26

  
	
  “Receivables
  Fees”

  	
   

  	
  26

  
	
  “Redemption
  Date”

  	
   

  	
  27

  



 


iv

















 


	
  “Redemption
  Price”

  	
   

  	
  27

  
	
  “Refinancing Indebtedness”

  	
   

  	
  27

  
	
  “Refunding
  Capital Stock”

  	
   

  	
  27

  
	
  “Registration Rights
  Agreement”

  	
   

  	
  27

  
	
  “Regular
  Record Date”

  	
   

  	
  27

  
	
  “Regulation S”

  	
   

  	
  27

  
	
  “Regulation
  S Global Note”

  	
   

  	
  27

  
	
  “Related
  Business Assets”

  	
   

  	
  27

  
	
  “Representative”

  	
   

  	
  27

  
	
  “Responsible
  Officer”

  	
   

  	
  27

  
	
  “Restricted
  Global Note”

  	
   

  	
  27

  
	
  “Restricted
  Investment”

  	
   

  	
  28

  
	
  “Restricted
  Payments”

  	
   

  	
  28

  
	
  “Restricted
  Period”

  	
   

  	
  28

  
	
  “Restricted
  Subsidiary”

  	
   

  	
  28

  
	
  “Retired
  Capital Stock”

  	
   

  	
  28

  
	
  “Rule 144”

  	
   

  	
  28

  
	
  “Rule 144A”

  	
   

  	
  28

  
	
  “Rule 903”

  	
   

  	
  28

  
	
  “Rule 904”

  	
   

  	
  28

  
	
  “S&P”

  	
   

  	
  28

  
	
  “Securities
  Act”

  	
   

  	
  28

  
	
  “Senior Credit Facilities”

  	
   

  	
  28

  
	
  “Senior
  Indebtedness”

  	
   

  	
  28

  
	
  “Senior
  Indebtedness”

  	
   

  	
  29

  
	
  “Senior Subordinated
  Indebtedness”

  	
   

  	
  29

  
	
  “Senior Unsecured Term Loan”

  	
   

  	
  29

  
	
  “Shelf Registration
  Statement”

  	
   

  	
  29

  
	
  “Significant
  Subsidiary”

  	
   

  	
  29

  
	
  “Similar
  Business”

  	
   

  	
  29

  
	
  “Special
  Interest”

  	
   

  	
  29

  
	
  “Special
  Interest Notice”

  	
   

  	
  30

  
	
  “Special
  Record Date”

  	
   

  	
  30

  
	
  “Stated
  Maturity”

  	
   

  	
  30

  
	
  “Subordinated Indebtedness”

  	
   

  	
  30

  
	
  “Subsidiary”

  	
   

  	
  30

  
	
  “Subsidiary
  Guarantee”

  	
   

  	
  30

  
	
  “Successor
  Company”

  	
   

  	
  30

  
	
  “Successor
  Person”

  	
   

  	
  30

  
	
  “Total Assets”

  	
   

  	
  31

  
	
  “Transactions”

  	
   

  	
  31

  
	
  “Treasury Rate”

  	
   

  	
  31

  
	
  “Trust Indenture Act” or
  “TIA”

  	
   

  	
  31

  
	
  “Trustee”

  	
   

  	
  31

  
	
  “Unrestricted Global Note”

  	
   

  	
  31

  
	
  “Unrestricted Subsidiary”

  	
   

  	
  31

  



 


v

















 


	
  “U.S. Person”

  	
   

  	
  32

  
	
  “Vice President”

  	
   

  	
  33

  
	
  “Voting Stock”

  	
   

  	
  33

  
	
  “Weighted Average
  Life to Maturity”

  	
   

  	
  33

  
	
  “Wholly Owned
  Restricted Subsidiary”

  	
   

  	
  33

  
	
  “Wholly
  Owned Subsidiary”

  	
   

  	
  33

  
	
  SECTION 102.  Compliance Certificates and Opinions

  	
   

  	
  33

  
	
  SECTION 103.  Form of Documents Delivered to Trustee

  	
   

  	
  34

  
	
  SECTION 104.  Acts of Holders

  	
   

  	
  34

  
	
  SECTION 105.  Notices, Etc., to Trustee, Company, any
  Guarantor and Agent

  	
   

  	
  35

  
	
  SECTION 106.  Notice to Holders; Waiver

  	
   

  	
  36

  
	
  SECTION 107.  Effect of Headings and Table of Contents

  	
   

  	
  36

  
	
  SECTION 108.  Successors and Assigns

  	
   

  	
  36

  
	
  SECTION 109.  Separability Clause

  	
   

  	
  36

  
	
  SECTION 110.  Benefits of Indenture

  	
   

  	
  37

  
	
  SECTION 111.  Governing Law

  	
   

  	
  37

  
	
  SECTION 112.  [INTENTIONALLY DELETED]

  	
   

  	
  37

  
	
  SECTION 113.  Legal Holidays

  	
   

  	
  37

  
	
  SECTION 114.  No Personal Liability of Directors,
  Officers, Employees and Stockholders.

  	
   

  	
  37

  
	
  SECTION 115.  Trust Indenture Act Controls

  	
   

  	
  37

  
	
  SECTION 116.  Counterparts

  	
   

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  
	
   

  	
   

  	
   

  
	
  NOTE
  FORMS

  
	
   

  
	
  SECTION 201.  Forms Generally

  	
   

  	
  38

  
	
  SECTION 202.  Form of Trustee’s Certificate of
  Authentication

  	
   

  	
  39

  
	
  SECTION 203.  Restrictive Legends

  	
   

  	
  39

  
	
  SECTION 204.  [INTENTIONALLY DELETED]

  	
   

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  
	
   

  	
   

  	
   

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  SECTION 301.  Title and Terms

  	
   

  	
  41

  
	
  SECTION 302.  Denominations

  	
   

  	
  42

  
	
  SECTION 303.  Execution, Authentication, Delivery and
  Dating

  	
   

  	
  42

  
	
  SECTION 304.  Temporary Notes.

  	
   

  	
  43

  
	
  SECTION 305.  Registration, Registration of Transfer and
  Exchange

  	
   

  	
  44

  
	
  SECTION 306.  Mutilated, Destroyed, Lost and Stolen
  Notes

  	
   

  	
  44

  
	
  SECTION 307.  Payment of Interest; Interest Rights
  Preserved

  	
   

  	
  45

  
	
  SECTION 308.  Persons Deemed Owners

  	
   

  	
  46

  
	
  SECTION 309.  Cancellation

  	
   

  	
  46

  
	
  SECTION 310.  Computation of Interest

  	
   

  	
  47

  
	
  SECTION 311.  [INTENTIONALLY DELETED]

  	
   

  	
  47

  



 


vi

















 


	
  SECTION 312.  Book-Entry and Transfer Provisions

  	
   

  	
  47

  
	
  SECTION 313.  [INTENTIONALLY DELETED]

  	
   

  	
  58

  
	
  SECTION 314.  [INTENTIONALLY DELETED]

  	
   

  	
  58

  
	
  SECTION 315.  CUSIP Numbers

  	
   

  	
  59

  
	
  SECTION 316.  Issuance of Additional Notes

  	
   

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  
	
   

  	
   

  	
   

  
	
  SATISFACTION
  AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  SECTION 401.  Satisfaction and Discharge of Indenture

  	
   

  	
  59

  
	
  SECTION 402.  Application of Trust Money

  	
   

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE FIVE

  
	
   

  	
   

  	
   

  
	
  REMEDIES

  
	
   

  	
   

  	
   

  
	
  SECTION 501.  Events of Default

  	
   

  	
  61

  
	
  SECTION 502.  Acceleration of Maturity; Rescission and
  Annulment

  	
   

  	
  63

  
	
  SECTION 503.  Collection of Indebtedness and Suits for
  Enforcement by Trustee

  	
   

  	
  64

  
	
  SECTION 504.  Trustee May File Proofs of Claim

  	
   

  	
  65

  
	
  SECTION 505.  Trustee May Enforce Claims Without
  Possession of Notes

  	
   

  	
  66

  
	
  SECTION 506.  Application of Money Collected

  	
   

  	
  66

  
	
  SECTION 507.  Limitation on Suits

  	
   

  	
  66

  
	
  SECTION 508.  Unconditional Right of Holders to Receive
  Principal, Premium and Interest

  	
   

  	
  67

  
	
  SECTION 509.  Restoration of Rights and Remedies

  	
   

  	
  67

  
	
  SECTION 510.  Rights and Remedies Cumulative

  	
   

  	
  67

  
	
  SECTION 511.  Delay or Omission Not Waiver

  	
   

  	
  68

  
	
  SECTION 512.  Control by Holders

  	
   

  	
  68

  
	
  SECTION 513.  Waiver of Past Defaults

  	
   

  	
  68

  
	
  SECTION 514.  Waiver of Stay or Extension Laws

  	
   

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE SIX

  
	
   

  	
   

  	
   

  
	
  THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 601.  Duties of the Trustee

  	
   

  	
  69

  
	
  SECTION 602.  Notice of Defaults

  	
   

  	
  70

  
	
  SECTION 603.  Certain Rights of Trustee

  	
   

  	
  70

  
	
  SECTION 604.  Trustee Not Responsible for Recitals or
  Issuance of Notes

  	
   

  	
  72

  
	
  SECTION 605.  May Hold Notes

  	
   

  	
  72

  
	
  SECTION 606.  Money Held in Trust

  	
   

  	
  72

  
	
  SECTION 607.  Compensation and Reimbursement

  	
   

  	
  72

  
	
  SECTION 608.  Corporate Trustee Required; Eligibility

  	
   

  	
  73

  
	
  SECTION 609.  Resignation and Removal; Appointment of
  Successor

  	
   

  	
  73

  
	
  SECTION 610.  Acceptance of Appointment by Successor

  	
   

  	
  75

  



 


vii

















 


	
  SECTION 611.  Merger, Conversion, Consolidation or
  Succession to Business

  	
   

  	
  75

  
	
  SECTION 612.  Appointment of Authenticating Agent

  	
   

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  
	
   

  	
   

  	
   

  
	
  HOLDERS
  LISTS AND REPORTS BY TRUSTEE AND COMPANY

  
	
   

  	
   

  	
   

  
	
  SECTION 701.  Company to Furnish Trustee Names and
  Addresses

  	
   

  	
  77

  
	
  SECTION 702.  Disclosure of Names and Addresses of
  Holders

  	
   

  	
  77

  
	
  SECTION 703.  Reports by Trustee

  	
   

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  
	
   

  	
   

  	
   

  
	
  MERGER,
  CONSOLIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL ASSETS

  
	
   

  	
   

  	
   

  
	
  SECTION 801.  Company May Consolidate, Etc., Only on
  Certain Terms

  	
   

  	
  78

  
	
  SECTION 802.  Subsidiary Guarantors May Consolidate,
  Etc., Only on Certain Terms

  	
   

  	
  79

  
	
  SECTION 803.  Successor Substituted

  	
   

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE NINE

  
	
   

  	
   

  	
   

  
	
  SUPPLEMENTAL
  INDENTURES

  
	
   

  	
   

  	
   

  
	
  SECTION 901.  Amendments or Supplements Without Consent
  of Holders

  	
   

  	
  80

  
	
  SECTION 902.  Amendments, Supplements or Waivers with
  Consent of Holders

  	
   

  	
  81

  
	
  SECTION 903.  Execution of Amendments, Supplements or
  Waivers

  	
   

  	
  82

  
	
  SECTION 904.  Effect of Amendments, Supplements or
  Waivers

  	
   

  	
  82

  
	
  SECTION 905.  Conformity with Trust Indenture Act

  	
   

  	
  82

  
	
  SECTION 906.  Reference in Notes to Supplemental
  Indentures

  	
   

  	
  83

  
	
  SECTION 907.  Notice of Supplemental Indentures

  	
   

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  SECTION 1001.  Payment of Principal, Premium, if any, and
  Interest

  	
   

  	
  83

  
	
  SECTION 1002.  Maintenance of Office or Agency

  	
   

  	
  83

  
	
  SECTION 1003.  Money for Notes Payments to Be Held in
  Trust

  	
   

  	
  84

  
	
  SECTION 1004.  Corporate Existence

  	
   

  	
  85

  
	
  SECTION 1005.  Payment of Taxes and Other Claims

  	
   

  	
  85

  
	
  SECTION 1006.  Maintenance of Properties

  	
   

  	
  85

  
	
  SECTION 1007.  Insurance

  	
   

  	
  85

  
	
  SECTION 1008.  Statement by Officers as to Default

  	
   

  	
  86

  
	
  SECTION 1009.  Reports and Other Information

  	
   

  	
  86

  
	
  SECTION 1010.  Limitation on Restricted Payments

  	
   

  	
  87

  
	
  SECTION 1011.  Limitation on Incurrence of Indebtedness
  and Issuance of Disqualified Stock

  	
   

  	
  94

  
	
  SECTION 1012.  Limitation on Liens

  	
   

  	
  99

  



 


viii

















 


	
  SECTION 1013.  Limitations on Transactions with Affiliates

  	
   

  	
  100

  
	
  SECTION 1014.  Limitations on Dividend and Other Payment
  Restrictions Affecting Restricted Subsidiaries

  	
   

  	
  101

  
	
  SECTION 1015.  Limitation on Guarantees of Indebtedness
  by Restricted Subsidiaries

  	
   

  	
  103

  
	
  SECTION 1016.  Limitation on Other Senior Subordinated
  Indebtedness

  	
   

  	
  105

  
	
  SECTION 1017.  Change of Control

  	
   

  	
  105

  
	
  SECTION 1018.  Asset Sales

  	
   

  	
  107

  
	
  SECTION 1019.  Waiver of Certain Covenants

  	
   

  	
  109

  
	
  SECTION 1020.  Special Interest Notice.

  	
   

  	
  110

  
	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  
	
   

  	
   

  	
   

  
	
  REDEMPTION
  OF NOTES

  
	
   

  	
   

  	
   

  
	
  SECTION 1101.  Right of Redemption

  	
   

  	
  110

  
	
  SECTION 1102.  Applicability of Article

  	
   

  	
  111

  
	
  SECTION 1103.  Election to Redeem; Notice to Trustee

  	
   

  	
  111

  
	
  SECTION 1104.  Selection by Trustee of Notes to Be
  Redeemed

  	
   

  	
  111

  
	
  SECTION 1105.  Notice of Redemption

  	
   

  	
  112

  
	
  SECTION 1106.  Deposit of Redemption Price

  	
   

  	
  113

  
	
  SECTION 1107.  Notes Payable on Redemption Date

  	
   

  	
  113

  
	
  SECTION 1108.  Notes Redeemed in Part

  	
   

  	
  113

  
	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE

  
	
   

  	
   

  	
   

  
	
  GUARANTEES

  
	
   

  	
   

  	
   

  
	
  SECTION 1201.  Guarantees

  	
   

  	
  113

  
	
  SECTION 1202.  Severability

  	
   

  	
  115

  
	
  SECTION 1203.  Restricted Subsidiaries

  	
   

  	
  115

  
	
  SECTION 1204.  Subordination of Guarantees

  	
   

  	
  116

  
	
  SECTION 1205.  Limitation of Guarantors’ Liability

  	
   

  	
  116

  
	
  SECTION 1206.  Contribution

  	
   

  	
  116

  
	
  SECTION 1207.  Subrogation

  	
   

  	
  116

  
	
  SECTION 1208.  Reinstatement

  	
   

  	
  117

  
	
  SECTION 1209.  Release of a Guarantor

  	
   

  	
  117

  
	
  SECTION 1210.  Benefits Acknowledged

  	
   

  	
  117

  
	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN

  
	
   

  	
   

  	
   

  
	
  DEFEASANCE AND COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  SECTION 1301.  Company’s Option to Effect Legal
  Defeasance or Covenant Defeasance

  	
   

  	
  117

  
	
  SECTION 1302.  Legal Defeasance and Discharge

  	
   

  	
  117

  
	
  SECTION 1303.  Covenant Defeasance

  	
   

  	
  118

  
	
  SECTION 1304.  Conditions to Legal Defeasance or Covenant
  Defeasance

  	
   

  	
  118

  



 


ix

















 


	
  SECTION 1305.  Deposited Money and Government Securities
  to Be Held in Trust; Other Miscellaneous Provisions

  	
   

  	
  120

  
	
  SECTION 1306.  Reinstatement

  	
   

  	
  121

  
	
   

  	
   

  	
   

  
	
  ARTICLE FOURTEEN

  
	
   

  	
   

  	
   

  
	
  SUBORDINATION
  OF NOTES

  
	
   

  	
   

  	
   

  
	
  SECTION 1401.  Agreement to Subordinate

  	
   

  	
  121

  
	
  SECTION 1402.  Liquidation; Dissolution; Bankruptcy.

  	
   

  	
  121

  
	
  SECTION 1403.  Default on Designated Senior Indebtedness

  	
   

  	
  122

  
	
  SECTION 1404.  Acceleration of Notes

  	
   

  	
  123

  
	
  SECTION 1405.  When Distribution Must Be Paid Over

  	
   

  	
  123

  
	
  SECTION 1406.  Notice by Company

  	
   

  	
  123

  
	
  SECTION 1407.  Subrogation

  	
   

  	
  124

  
	
  SECTION 1408.  Relative Rights

  	
   

  	
  124

  
	
  SECTION 1409.  Subordination May Not Be Impaired by
  Company

  	
   

  	
  124

  
	
  SECTION 1410.  Distribution or Notice to Representative

  	
   

  	
  124

  
	
  SECTION 1411.  Rights of Trustee and Paying Agent

  	
   

  	
  125

  
	
  SECTION 1412.  Authorization to Effect Subordination

  	
   

  	
  125

  
	
  SECTION 1413.  Trustee Not Fiduciary for Holders of
  Senior Indebtedness.

  	
   

  	
  125

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A - Form of Note

  	
   

  	
   

  
	
  EXHIBIT B – Form of
  Certificate of Transfer

  	
   

  	
   

  
	
  EXHIBIT C – Form of
  Certificate of Exchange

  	
   

  	
   

  
	
  EXHIBIT D – Form of
  Certificate from Acquiring Institutional Investor

  	
   

  	
   

  
	
  EXHIBIT E – Form of Notation
  of Guarantee

  	
   

  	
   

  
	
  EXHIBIT F – Form of
  Supplemental Indenture

  	
   

  	
   

  
	
  EXHIBIT G – Form of
  Incumbency Certificate

  	
   

  	
   

  



 


x

















 


INDENTURE,
dated as of April 6, 2004 (this “Indenture”), among SEALY MATTRESS
COMPANY, an Ohio corporation (the “Company”), having its principal office at
One Office Parkway, Trinity, North Carolina 27230, the Company’s parent
corporation, SEALY CORPORATION, a Delaware corporation and certain of the
Company’s direct and indirect Domestic Subsidiaries, each named in the
signature pages hereto (each, a “Guarantor” and, collectively, the
“Guarantors”), and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking
association, Trustee (the “Trustee”).


 


RECITALS OF THE COMPANY


 


The
Company has duly authorized the creation of an issue of (i) 8.25% Senior
Subordinated Notes due 2014 issued on the date hereof (the “Initial Notes”) and
(ii) if and when issued pursuant to the Registration Rights Agreement, dated
the date hereof, among the Company, the Guarantors and the Purchasers (as
defined therein) (the “Registration Rights Agreement”), 8.25% Senior
Subordinated Exchange Notes due 2014 issued in an Exchange Offer in exchange
for any Initial Notes (the “Exchange Notes”, and collectively with the Initial
Notes, the “Notes”), of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution
and delivery of this Indenture.


 


Each
Guarantor has duly authorized its Guarantee of the Initial Notes, and if and
when issued, the Exchange Notes and to provide therefor each Guarantor has duly
authorized the execution and delivery of this Indenture.


 


Upon
the issuance of the Exchange Notes, if any, or the effectiveness of a Shelf
Registration Statement, this Indenture shall be subject to the provisions of
the Trust Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.


 


All
things necessary have been done to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid and legally binding obligations of the Company and to make this Indenture
a valid and legally binding agreement of the Company, in accordance with their
and its terms.


 


All
things necessary have been done to make the Guarantees, upon execution and
delivery of this Indenture, the valid obligations of each Guarantor and to make
this Indenture a valid and legally binding agreement of each Guarantor, in
accordance with their and its terms.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


For
and in consideration of the premises and the purchase of the Notes by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, as follows:


 

















 


ARTICLE ONE


 


DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION


 


SECTION 101.  Definitions.


 


For
all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:


 


(a)                                  the terms defined in this Article have
the meanings assigned to them in this Article, and include the plural as well
as the singular;


 


(b)                                 all other terms used herein which are defined
in the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms “cash transaction” and
“self-liquidating paper”, as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;


 


(c)                                  all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with GAAP (as herein
defined); and


 


(d)                                 the words “herein”, “hereof” and “hereunder”
and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.


 


“144A Global Note” means a Global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Notes sold in reliance on Rule 144A.


 


“Acquired Indebtedness” means, with respect to any specified Person,


 


(1)                                  Indebtedness of any other Person existing at
the time such other Person is merged with or into or became a Restricted
Subsidiary of such specified Person, including, without limitation,
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Restricted Subsidiary of such
specified Person, and


 


(2)                                  Indebtedness secured by a Lien encumbering
any asset acquired by such specified Person.


 


“Act”, when
used with respect to any Holder, has the meaning specified in Section 104
of this Indenture.


 


“Additional Notes” means any Notes issued by the Company
pursuant to Section 316.


 


2

















 


“Adjusted Net Assets” has the meaning specified in
Section 1206 of this Indenture.


 


“Affiliate” of any specified Person means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise.


 


“Affiliate Transaction” has the meaning specified in
Section 1013 of this Indenture.


 


“Agent” means any Note Registrar, co-registrar, Paying Agent or additional
paying agent.


 


“Applicable Premium” means, with respect to any Note on any
Redemption Date, the greater of:


 


(1)
1.0% of the principal amount of the Note; or


 


(2)
the excess, if any, of:


 


(a) the present value at such redemption date of (i)
the redemption price of the Note at June 15, 2009 (such redemption price
being set forth in the table appearing in Section 1101), plus (ii) all required interest payments
due on the Note through June 15, 2009 (excluding accrued but unpaid
interest to the Redemption Date), computed using a discount rate equal to the
Treasury Rate as of such Redemption Date plus 50 basis points; over


 


(b) the principal amount of the Note.


 


“Applicable Procedures” means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.


 


“Asset Sale” means:


 


(1)                                  the sale, conveyance, transfer or other
disposition, whether in a single transaction or a series of related transactions,
of property or assets (including by way of a sale and leaseback) of the Company
or any Restricted Subsidiary (each referred to in this definition as a
“disposition”), or


 


(2)                                  the issuance or sale of Equity Interests of
any Restricted Subsidiary, whether in a single transaction or a series of
related transactions, in each case, other than:


 


3

















 


(a)                                  a disposition of Cash Equivalents or
Investment Grade Securities or obsolete or worn out equipment in the ordinary
course of business or inventory or goods held for sale in the ordinary course
of business;


 


(b)                                 the disposition of all or substantially all
of the assets of the Company in a manner permitted pursuant to
Article Eight or any disposition that constitutes a Change of Control
pursuant to this Indenture;


 


(c)                                  the making of any Restricted Payment or
Permitted Investment that is permitted to be made, and is made, under
Section 1010;


 


(d)                                 any disposition of assets or issuance or sale
of Equity Interests of any Restricted Subsidiary in any transaction or series
of transactions with an aggregate fair market value of less than $2.5 million;


 


(e)                                  any disposition of property or assets or
issuance of securities by a Restricted Subsidiary to the Company or by the Company
or a Restricted Subsidiary to a Restricted Subsidiary;


 


(f)                                    to the extent allowable under
Section 1031 of the Internal Revenue Code of 1986, any exchange of like
property (excluding any boot thereon) for use in a Similar Business;


 


(g)                                 the lease, assignment or sub-lease of any
real or personal property in the ordinary course of business;


 


(h)                                 any sale of Equity Interests in, or
Indebtedness or other securities of, an Unrestricted Subsidiary (with the
exception of Investments in Unrestricted Subsidiaries acquired pursuant to
clause (j) of the definition of Permitted Investments);


 


(i)                                     foreclosures on assets;


 


(j)                                     sales of accounts receivable, or
participations therein, in connection with any Receivables Facility; and


 


(k)                                  any financing transaction with respect to
property built or acquired by the Company or any Restricted Subsidiary after
the Issue Date, including, without limitation, sale leasebacks and asset
securitizations permitted by this Indenture.


 


“Asset Sale Offer” has the meaning specified in Section 1018
of this Indenture.


 


“Bankruptcy Law” means Title 11, United States Bankruptcy
Code of 1978, as amended, or any similar United States federal or state law
relating to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or
change in any such law.


 


“Board of Directors” means, with respect to any Person, either
the board of directors of such Person or any duly authorized committee of such
board.


 


4

















 


“Board Resolution” means, with respect to any Person, a copy of
a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and, if required by this
Indenture, delivered to the Trustee.


 


“Broker-Dealer” has the meaning set forth in the
Registration Rights Agreement.


 


“Business Day” means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in The
City of New York are authorized or obligated by law, regulation or executive
order to close.


 


“Capital Stock” means:


 


(1)                                  in the case of a corporation, corporate
stock,


 


(2)                                  in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock,


 


(3)                                  in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited), and


 


(4)                                  any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.


 


“Capitalized Lease
Obligation” means, at
the time any determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required to be
capitalized and reflected as a liability on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP.


 


“Cash Equivalents” means:


 


(1)                                  United States dollars,


 


(2)                                  pounds sterling,


 


(3)                                  (a) euro, or any national currency of any
participating member state in the European Union or (b) in the case of any
Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held
by them from time to time in the ordinary course of business,


 


(4)                                  securities issued or directly and fully and
unconditionally guaranteed or insured by the United States government or any
agency or instrumentality thereof the securities of which are unconditionally
guaranteed as a full faith and credit obligation of such government with
maturities of 24 months or less from the date of acquisition,


 


(5)                                  certificates of deposit, time deposits and
eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers’ acceptances with


 


5

















 


maturities
not exceeding one year and overnight bank deposits, in each case with any
commercial bank having capital and surplus in excess of $500.0 million,


 


(6)                                  repurchase obligations for underlying
securities of the types described in clauses (4) and (5) above, entered into
with any financial institution meeting the qualifications specified in clause
(5) above,


 


(7)                                  commercial paper rated at least P-1 by
Moody’s or at least A-1 by S&P and in each case maturing within 12 months
after the date of creation thereof,


 


(8)                                  investment funds investing 95% of their
assets in securities of the types described in clauses (1) through (7) above,


 


(9)                                  readily marketable direct obligations issued
by any state of the United States of America or any political subdivision
thereof having one of the two highest rating categories obtainable from either
Moody’s or S&P with maturities of 24 months or less from the date of
acquisition, and


 


(10)                            Indebtedness or preferred stock issued by
Persons with a rating of “A” or higher from S&P or “A2” or higher from
Moody’s with maturities of 12 months or less from the date of acquisition.


 


Notwithstanding
the foregoing, Cash Equivalents shall include amounts denominated in currencies
other than those set forth in clauses (1) through (3) above, provided that such
amounts are converted into any currency listed in clauses (1) through (3)
above, as promptly as practicable and in any event within ten Business Days
following the receipt of such amounts.


 


“Change of Control” means the occurrence of any of the
following:


 


(1)                                  the sale, lease or transfer, in one or a
series of related transactions, of all or substantially all of the assets of
the Company and its Subsidiaries, taken as a whole, to any Person other than a
Permitted Holder; or


 


(2)                                  the Company becomes aware of (by way of a
report or any other filing pursuant Section 13(d) of the Exchange Act,
proxy, vote, written notice or otherwise) the acquisition by any Person or
group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act, or any successor provision), including any group acting for
the purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the Permitted
Holders, in a single transaction or in a related series of transactions, by way
of merger, consolidation or other business combination or purchase of
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act,
or any successor provision) of 50% or more of the total voting power of the
Voting Stock of the Parent or any of its direct or indirect parent
corporations.


 


“Change of Control Offer” has the meaning specified in
Section 1017 of this Indenture.


 


6

















 


“Change of Control Payment” has the meaning specified in
Section 1017 of this Indenture.


 


“Change of Control Payment
Date” has the meaning
specified in Section 1017 of this Indenture.


 


“Commission” means the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.


 


“Common Stock” means, with respect to any Person, any and
all shares, interests, participations and other equivalents (however designated,
whether voting or non-voting) of such Person’s common stock, whether now
outstanding or issued after the date of this Indenture, and includes, without
limitation, all series and classes of such common stock.


 


“Company” means the Person named as the “Company” in
the first paragraph of this Indenture, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor Person.


 


“Company Request” or
“Company Order” means
a written request or order signed in the name of the Company by its Chairman,
its President, any Vice President, its Treasurer or an Assistant Treasurer, and
delivered to the Trustee.


 


“consolidated” or
“Consolidated” means,
with respect to any Person, such Person consolidated with its Restricted
Subsidiaries, and shall not include any Unrestricted Subsidiary.


 


“Consolidated Depreciation
and Amortization
Expense” means with respect to any Person for any period, the total amount of
depreciation and amortization expense, including the amortization of deferred
financing fees, and other non-cash charges, excluding any non-cash item that
represents an accrual or reserve for a cash expenditure for a future period, of
such Person and its Restricted Subsidiaries for such period on a consolidated
basis and otherwise determined in accordance with GAAP.


 


“Consolidated Interest
Expense” means, with
respect to any Person for any period, the sum, without duplication, of:


 


(a)                                  consolidated interest expense of such Person
and its Restricted Subsidiaries for such period, to the extent such expense was
deducted in computing Consolidated Net Income (including amortization of
original issue discount resulting from the issuance of Indebtedness at less
than par, non-cash interest payments (but excluding any non-cash interest
expense attributable to the movement in the mark to market valuation of Hedging
Obligations or other derivative instruments pursuant to Financial Accounting
Standards Board Statement No.133 ”Accounting for Derivative Instruments
and Hedging Activities”), the interest component of Capitalized Lease
Obligations and net payments, if any, pursuant to interest rate Hedging
Obligations, and excluding amortization of deferred financing fees and any
expensing of bridge or other financing fees), and


 


7

















 


(b)                                 consolidated capitalized interest of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
less


 


(c)                                  interest income for such period.


 


“Consolidated Net Income” means, with respect to any Person for any
period, the aggregate of the Net Income, of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, and otherwise determined
in accordance with GAAP; provided,
however, that:


 


(1)                                  any net after-tax extraordinary,
non-recurring or unusual gains or losses (less all fees and expenses relating
thereto) or expenses (including, without limitation, relating to severance,
relocation, new product introductions and the Transactions) shall be excluded,


 


(2)                                  the Net Income for such period shall not
include the cumulative effect of a change in accounting principles during such
period,


 


(3)                                  any net after-tax income (loss) from disposed
or discontinued operations and any net after-tax gains or losses on disposal of
disposed or discontinued operations shall be excluded,


 


(4)                                  any net after-tax gains or losses (less all
fees and expenses relating thereto) attributable to asset dispositions other
than in the ordinary course of business, as determined in good faith by the
Board of Directors of the Company, shall be excluded,


 


(5)                                  the Net Income for such period of any Person
that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of
the Company shall be increased by the amount of dividends or distributions or
other payments that are actually paid in cash (or to the extent converted into
cash) to the referent Person or a Restricted Subsidiary thereof in respect of
such period,


 


(6)                                  solely for the purpose of determining the
amount available for Restricted Payments under Section 1010(a)(4)(c), the
Net Income for such period of any Restricted Subsidiary (other than any Guarantor)
shall be excluded if the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of its Net Income is not at the
date of determination wholly permitted without any prior governmental approval
(which has not been obtained) or, directly or indirectly, by the operation of
the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule, or governmental regulation applicable to such Restricted
Subsidiary or its stockholders, unless such restriction with respect to the
payment of dividends or in similar distributions has been legally waived,
provided that Consolidated Net Income of the Company shall be increased by the
amount of dividends or other distributions or other payments actually paid in
cash (or to the extent converted into cash) to the Company or a Restricted
Subsidiary thereof in respect of such period, to the extent not already
included therein,


 


8

















 


(7)                                  any increase in amortization or depreciation
or other non-cash charges resulting from the application of purchase accounting
in relation to the Transactions or any acquisition that is consummated after
the Issue Date, net of taxes, shall be excluded,


 


(8)                                  any net after-tax income (loss) from the
early extinguishment of Indebtedness or Hedging Obligations or other derivative
instruments shall be excluded,


 


(9)                                  any impairment charge or asset write-off
pursuant to Financial Accounting Standards Board Statement No. 142 and No. 144
and the amortization of intangibles arising pursuant to No. 141 shall be
excluded, and


 


(10)                            any non-cash compensation expense recorded
from grants of stock appreciation or similar rights, stock options or other
rights to officers, directors or employees shall be excluded.


 


Notwithstanding
the foregoing, for the purpose of Section 1010 only (other than clause
(a)(4)(C)(4) thereof), there shall be excluded from Consolidated Net Income any
income arising from any sale or other disposition of Restricted Investments made
by the Company and the Restricted Subsidiaries, any repurchases and redemptions
of Restricted Investments from the Company and the Restricted Subsidiaries, any
repayments of loans and advances which constitute Restricted Investments by the
Company or any Restricted Subsidiary, any sale of the stock of an Unrestricted
Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in
each case only to the extent such amounts increase the amount of Restricted
Payments permitted under such covenant pursuant to clause (a)(4)(C)(4) thereof.


 


“Contingent Obligations” means, with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness (“primary obligations”) of any
other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent,


 


(1)                                  to purchase any such primary obligation or
any property constituting direct or indirect security therefor,


 


(2)                                  to advance or supply funds:


 


(A)                              for the purchase or payment of any such
primary obligation, or


 


(B)                                to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, or


 


(3)                                  to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation against loss in respect thereof.


 


“Corporate Trust Office” means the principal corporate trust office
of the Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at The Bank of New York Trust Company,


 


9

















 


N.A.,
10161 Centurion Parkway, Jacksonville, Florida 32256, except that with respect
to presentation of the Notes for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which, at
any particular time, its corporate agency business shall be conducted.


 


“Corporation” includes corporations, associations,
companies and business trusts.


 


“Covenant Defeasance” has the meaning specified in
Section 1303 of this Indenture.


 


“Credit Facilities” means, with respect to the Company, one or
more debt facilities, including, without limitation, the Senior Credit
Facilities and the Senior Unsecured Term Loan, or commercial paper facilities
with banks or other institutional lenders or investors or indentures providing
for revolving credit loans, term loans, receivables financing, including
through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against receivables, letters of credit or
other long-term indebtedness, including any guarantees, collateral documents,
instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements or
refundings thereof and any indentures or credit facilities or commercial paper
facilities with banks or other institutional lenders or investors that replace,
refund or refinance any part of the loans, notes, other credit facilities or
commitments thereunder, including any such replacement, refunding or
refinancing facility or indenture that increases the amount borrowable
thereunder or alters the maturity therof.


 


“Custodian” means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.


 


“Default” means any event that is, or with the passage of time or the giving of
notice or both would be, an Event of Default.


 


“Defaulted Interest” has the meaning specified in
Section 307 of this Indenture.


 


“Definitive Note” means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 312
hereof, substantially in the form of Exhibit A hereto except that such Note
shall not bear the Global Note Legend and shall not have the “Schedule of
Exchanges of Interests in the Global Note” attached thereto.


 


“Depositary” means The Depository Trust Company, its
nominees and their respective successors.


 


“Designated Non-cash
Consideration” means
the fair market value of non-cash consideration received by the Company or a
Restricted Subsidiary in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting
forth the basis of such valuation, executed by an executive vice president and
the principal financial officer of the Company, less the amount of cash or Cash
Equivalents received in connection with a subsequent sale of such Designated
Non-cash Consideration.


 


10

















 


“Designated Preferred Stock” means preferred stock of the Company or any
parent corporation thereof (in each case other than Disqualified Stock) that is
issued for cash (other than to a Restricted Subsidiary) and is so designated as
Designated Preferred Stock, pursuant to an Officers’ Certificate executed by an
executive vice president and the principal financial officer of the Company or
the applicable parent corporation thereof, as the case may be, on the issuance
date thereof, the cash proceeds of which are excluded from the calculation set
forth in clause (a)(4)(C) of Section 1010.


 


“Designated Senior
Indebtedness” means:


 


(1)                                  any Indebtedness outstanding under the Senior
Credit Facilities; and


 


(2)                                  any other Senior Indebtedness permitted under
this Indenture, the principal amount of which is $25.0 million or more and that
has been designated by the Company as “Designated Senior Indebtedness.”


 


“Disqualified Stock” means, with respect to any Person, any
Capital Stock of such Person which, by its terms, or by the terms of any
security into which it is convertible or for which it is putable or
exchangeable, or upon the happening of any event, matures or is mandatorily
redeemable, other than as a result of a change of control or asset sale,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, other than as a result of a change of control or
asset sale, in whole or in part, in each case prior to the date 91 days after
the earlier of the maturity date of the Notes or the date the Notes are no
longer outstanding; provided, however, that if such Capital Stock is
issued to any plan for the benefit of employees of the Company or its
Subsidiaries or by any such plan to such employees, such Capital Stock shall
not constitute Disqualified Stock solely because it may be required to be
repurchased by the Company or its Subsidiaries in order to satisfy applicable
statutory or regulatory obligations.


 


“Domestic Subsidiary” means, with respect to any Person, any
Restricted Subsidiary of such Person other than a Foreign Subsidiary.


 


“EBITDA” means, with respect to any Person for any period, the Consolidated Net
Income of such Person for such period plus:


 


(a)                                  provision for taxes based on income or profits,
plus franchise or similar taxes, of such Person for such period deducted in
computing Consolidated Net Income, plus


 


(b)                                 Consolidated Interest Expense of such Person
for such period to the extent the same was deducted in calculating such
Consolidated Net Income, plus


 


(c)                                  Consolidated Depreciation and Amortization
Expense of such Person for such period to the extent such depreciation and
amortization were deducted in computing Consolidated Net Income, plus


 


(d)                                 any expenses or charges related to any Equity
Offering, Permitted Investment, acquisition, disposition, recapitalization or
Indebtedness permitted to be incurred by this Indenture (whether or not
successful), including such fees, expenses or charges related to


 


11

















 


the
offering of the Notes and the Credit Facilities, and deducted in computing
Consolidated Net Income, plus


 


(e)                                  the amount of any restructuring charge
deducted in such period in computing Consolidated Net Income, including any
one-time costs incurred in connection with acquisitions after the Issue Date, plus


 


(f)                                    without duplication, any other non-cash
charges reducing Consolidated Net Income for such period, excluding any such
charge that represents an accrual or reserve for a cash expenditure for a
future period, plus


 


(g)                                 the amount of any minority interest expense
deducted in calculating Consolidated Net Income (less the amount of any cash
dividends paid to the holders of such minority interests), plus


 


(h)                                 any net gain or loss resulting from currency
exchange risk Hedging Obligations, plus


 


(i)                                     the amount of management, monitoring,
consulting and advisory fees and related expenses paid to Bain Capital, LLC or
Kohlberg Kravis Roberts & Co., L.P. or any of their respective affiliates, plus


 


(j)                                     expenses related to the implementation of
enterprise resource planning systems, plus


 


(k)                                  without duplication, the Historical
Adjustments, less


 


(l)                                     non-cash items increasing Consolidated Net
Income of such Person for such period, excluding any items which represent the
reversal of any accrual of, or cash reserve for, anticipated cash charges in
any prior period.


 


“EMU” means
economic and monetary union as contemplated in the Treaty on European Union.


 


“Equity Interests” means Capital Stock and all warrants,
options or other rights to acquire Capital Stock, but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock.


 


“Equity Offering” means any public or private sale of Common
Stock or preferred stock of the Company or any of its direct or indirect parent
corporations (excluding Disqualified Stock), other than


 


(1)                                  public offerings with respect to the
Company’s or any direct or indirect parent corporation’s Common Stock
registered on Form S-8 and


 


(2)                                  any such public or private sale that
constitutes an Excluded Contribution.


 


“euro” means the single currency of participating member states of the EMU.


 


12

















 


“Event of Default” has the meaning specified in
Section 501 of this Indenture.


 


“Excess Proceeds” has the meaning specified in
Section 1018 of this Indenture.


 


“Exchange Act” means the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.


 


“Exchange Notes” has the meaning specified in the first
recital of this Indenture.  Unless the
context otherwise requires, all references to the Exchange Notes shall include
8.25% Senior Subordinated Exchange Notes due 2014 issued in exchange for any
Additional Notes.


 


“Exchange Offer” means the Exchange Offer as defined in the
Registration Rights Agreement.


 


“Exchange Offer Registration
Statement” means the
Exchange Offer Registration Statement as defined in the Registration Rights
Agreement.


 


“Excluded Contribution” means net cash proceeds, marketable
securities or Qualified Proceeds received by the Company from:


 


(a)                                  contributions to its common equity capital,
and


 


(b)                                 the sale (other than to a Subsidiary of the
Company or to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement of the Company) of Capital
Stock (other than Disqualified Stock and Designated Preferred Stock) of the
Company,


 


in
each case designated as Excluded Contributions pursuant to an Officers’ Certificate
executed by an executive vice president and the principal financial officer of
the Company on the date such capital contributions are made or the date such
Equity Interests are sold, as the case may be, which are excluded from the
calculation set forth in Section 1010(a)(4)(C).


 


“Existing Indebtedness” means Indebtedness of the Company or the
Restricted Subsidiaries in existence on the Issue Date, plus interest accruing
thereon.


 


“Fixed Charge Coverage
Ratio” means, with
respect to any Person for any period, the ratio of EBITDA of such Person for
such period to the Fixed Charges of such Person for such period. In the event
that the Company or any Restricted Subsidiary incurs, assumes, guarantees or
redeems any Indebtedness or issues or redeems Disqualified Stock or preferred
stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro
forma effect to such incurrence, assumption, guarantee or redemption of
Indebtedness, or such issuance or redemption of Disqualified Stock or preferred
stock, as if the same had occurred at the beginning of the applicable
four-quarter period.


 


For
purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, consolidations and disposed operations (as
determined in


 


13

















 


accordance
with GAAP) that have been made by such Person or any Restricted Subsidiary
thereof during the four-quarter reference period or subsequent to such
reference period and on or prior to or simultaneously with the Calculation Date
shall be calculated on a pro forma basis assuming that all such Investments,
acquisitions, dispositions, mergers, consolidations and disposed operations
(and the change in any associated fixed charge obligations and the change in
EBITDA resulting therefrom) had occurred on the first day of the four-quarter
reference period.  If since the
beginning of such period any other Person (that subsequently became a
Restricted Subsidiary or was merged with or into such Person or any Restricted
Subsidiary thereof since the beginning of such period) shall have made any
Investment, acquisition, disposition, merger, consolidation or disposed
operation that would have required adjustment pursuant to this definition, then
the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
thereto for such period as if such Investment, acquisition, disposition,
merger, consolidation or disposed operation had occurred at the beginning of
the applicable four-quarter period.


 


For
purposes of this definition, whenever pro forma effect is to be given to a
transaction, the pro forma calculations shall be made in good faith by a
responsible financial or accounting officer of the Company. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligations applicable to such Indebtedness). Interest
on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Company to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period. Interest on
Indebtedness that may optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank offered rate, or
other rate, shall be deemed to have been based upon the rate actually chosen,
or, if none, then based upon such optional rate chosen as the Company may
designate.


 


“Fixed Charges” means, with respect to any Person for any
period, the sum of


 


(a)                                  Consolidated Interest Expense of such Person
for such period,


 


(b)                                 all cash dividend payments (excluding items
eliminated in consolidation) on any series of preferred stock (including any
Designated Preferred Stock) or any Refunding Capital Stock of such Person, and


 


(c)                                  all cash dividend payments (excluding items
eliminated in consolidation) on any series of Disqualified Stock.


 


“Foreign Subsidiary” means, with respect to any Person, any
Restricted Subsidiary of such Person that is not organized or existing under
the laws of the United States, any state thereof, the District of Columbia, or
any territory thereof.


 


“Funding Guarantor” has the meaning specified in
Section 1206 of this Indenture.


 


14

















 


“GAAP” means generally accepted accounting principles in the United States
which are in effect on the Issue Date.


 


“Global Note Legend” means the legend set forth in
Section 203 hereof, which is required to be placed on all Global Notes
issued under this Indenture.


 


“Global Notes” means, individually and collectively, each
of the Restricted Global Notes and the Unrestricted Global Notes deposited with
or on behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A hereto and that bears the Global Note
Legend and that has the “Schedule of Exchanges of Interests in the Global
Note” attached thereto, issued in accordance with Section 201, 312(b)(3),
312(b)(4), 312(d)(2) or 312(f) hereof.


 


“Government Securities” means securities that are:


 


(a)                                  direct obligations of the United States of
America for the timely payment of which its full faith and credit is pledged,
or


 


(b)                                 obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America,


 


which,
in either case, are not callable or redeemable at the option of the issuers
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act), as custodian with
respect to any such Government Securities or a specific payment of principal of
or interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Securities or the specific payment of principal of or interest
on the Government Securities evidenced by such depository receipt.


 


“guarantee” means a guarantee (other than by endorsement
of negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness or other obligations.


 


“Guarantee” means the guarantee by any Guarantor of the
Company’s obligations under this Indenture.


 


“Guarantors” means the Parent and all Restricted
Subsidiaries that are Domestic Subsidiaries as of the Issue Date and any other
Subsidiary of the Company that executes a supplemental indenture to this
Indenture providing for a guarantee of payment of the Notes.


 


“Hedging Obligations” means, with respect to any Person, the
obligations of such Person under:


 


15

















 


(1)                                  currency exchange, interest rate or commodity
swap agreements, currency exchange, interest rate or commodity cap agreements
and currency exchange, interest rate or commodity collar agreements and


 


(2)                                  other agreements or arrangements designed to
protect such Person against fluctuations in currency exchange, interest rates
or commodity prices.


 


“Historical Adjustments” means with respect to any Person, without
duplication, the following items to the extent incurred prior to the Issue
Date:


 


(1)                                  costs and expenses associated with the
introduction of new products (as determined by management of the Company),


 


(2)                                  management fees incurred by the Company
relating to Bain Capital Management,


 


(3)                                  consulting fees incurred by the Company
relating to Bain Consulting,


 


(4)                                  charges associated with changes in estimates
related to workers compensation and vacation pay reserves,


 


(5)                                  facilities rationalization and closed
facilities expenses,


 


(6)                                  non-cash charges associated with: (i)
write-offs and impairments related to affiliates, (ii) deferred debt and
derivative costs and (iii) stock-based compensation,


 


(7)                                  unusual relocation costs (as determined by
management of the Company),


 


(8)                                  accounts receivable process improvement
costs, and


 


(9)                                  other unusual gains or expenses (as
determined by management of the Company) consisting of: (i) consulting expenses
incurred in connection with establishment of a financial subsidiary, (ii)
changes in preference claim reserves, (iii) severance expenses associated with
former employees, (iv) exclusion of gains associated with affiliate notes
receivable, (v) cancellation of a management consulting contract, (vi) interest
income and (vii) write-off of accounts receivable associated with Homelife.


 


“Holder” means a holder of Notes.


 


“IAI Global Note” means a Global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee that will initially be issued in a
denomination equal to the outstanding principal amount of the Notes sold to Institutional
Accredited Investors.


 


“incur” has the meaning specified in Section 1011 of this Indenture.


 


16

















 


“incurrence” has the meaning specified in
Section 1011 of this Indenture.


 


“Indebtedness” means, with respect to any Person,


 


(a)                                  any indebtedness (including principal and
premium) of such Person, whether or not contingent:


 


(1)                                  in respect of borrowed money;


 


(2)                                  evidenced by bonds, notes, debentures or
similar instruments or letters of credit or bankers’ acceptances (or, without
double counting, reimbursement agreements in respect thereof);


 


(3)                                  representing the balance deferred and unpaid
of the purchase price of any property (including Capitalized Lease
Obligations), except any such balance that constitutes a trade payable or
similar obligation to a trade creditor, in each case accrued in the ordinary
course of business; or


 


(4)                                  representing any Hedging Obligations,


 


if
and to the extent that any of the foregoing Indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet (excluding the footnotes thereto) of such Person prepared in accordance
with GAAP;


 


(b)                                 to the extent not otherwise included, any
obligation by such Person to be liable for, or to pay, as obligor, guarantor or
otherwise, on the Indebtedness of another Person, other than by endorsement of
negotiable instruments for collection in the ordinary course of business; and


 


(c)                                  to the extent not otherwise included,
Indebtedness of another Person secured by a Lien on any asset owned by such
Person, whether or not such Indebtedness is assumed by such Person;


 


provided, however, that
Contingent Obligations incurred in the ordinary course of business shall be
deemed not to constitute Indebtedness; and obligations under or in respect of
Receivables Facilities shall not be deemed to constitute Indebtedness.


 


“Indenture” means this instrument as originally executed
and as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this Indenture and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be part of and govern this instrument and any such supplemental
indenture, respectively.


 


“Independent Financial
Advisor” means an
accounting, appraisal, investment banking firm or consultant to Persons engaged
in Similar Businesses of nationally recognized standing that is, in the good faith
judgment of the Company, qualified to perform the task for which it has been
engaged.


 


17

















 


“Indirect Participant” means a Person who holds a beneficial
interest in a Global Note through a Participant.


 


“Initial Notes” has the meaning stated in the first recital
of this Indenture.


 


“Initial Purchasers” means Goldman, Sachs & Co., J.P. Morgan
Securities Inc., RBC Capital Markets Corporation and ING Financial Markets LLC.


 


“Interest Payment Date” means the Stated Maturity of an installment
of interest on the Notes.


 


“Institutional Accredited
Investor” means an
institution that is an “accredited investor” as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act, who are not also QIBs.


 


“Investment Grade
Securities” means:


 


(1)                                  securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents),


 


(2)                                  debt securities or debt instruments with a
rating of BBB- or higher by S&P or Baa3 or higher by Moody’s or the
equivalent of such rating by such rating organization, or, if no rating of
S&P or Moody’s then exists, the equivalent of such rating by any other
nationally recognized securities rating agency, but excluding any debt
securities or instruments constituting loans or advances among the Company and
its Subsidiaries,


 


(3)                                  investments in any fund that invests
exclusively in investments of the type described in clauses (1) and (2) above,
which fund may also hold immaterial amounts of cash pending investment and/or
distribution, and


 


(4)                                  corresponding instruments in countries other
than the United States customarily utilized for high quality investments.


 


“Investments” means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the form of loans
(including guarantees), advances or capital contributions (excluding accounts
receivable, trade credit, advances to customers, commission, travel and similar
advances to officers and employees, in each case made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities issued by any other Person and investments
that are required by GAAP to be classified on the balance sheet (excluding the
footnotes) of the Company in the same manner as the other investments included
in this definition to the extent such transactions involve the transfer of cash
or other property. For purposes of the definition of “Unrestricted Subsidiary”
and Section 1010,


 


(1)                                  “Investments” shall include the portion
(proportionate to the Company’s equity interest in such Subsidiary) of the fair
market value of the net assets of a Subsidiary of the Company at the time that
such Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,


 


18

















 


the
Company shall be deemed to continue to have a permanent “Investment” in an
Unrestricted Subsidiary in an amount (if positive) equal to:


 


(x)                                   the Company’s “Investment” in such Subsidiary
at the time of such redesignation less


 


(y)                                 the portion (proportionate to the Company’s
equity interest in such Subsidiary) of the fair market value of the net assets
of such Subsidiary at the time of such redesignation; and


 


(2)                                  any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer, in each case as determined in good faith by the Company.


 


“Issue Date” means April 6, 2004.


 


“Legal Defeasance” has the meaning specified in
Section 1302 of this Indenture.


 


“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or otherwise perfected under applicable law, including
any conditional sale or other title retention agreement, any lease in the
nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction;
provided that in no event shall
an operating lease be deemed to constitute a Lien.


 


“Letter of Transmittal” means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.


 


“Management Group” means at any time, the Chairman of the
Board, any President, any Executive Vice President or Vice President, any
Managing Director, any Treasurer and any Secretary or other executive officer
of any of the Parent, the Company or any Subsidiary of any such company at such
time.


 


“Maturity”, when used with respect to any Note, means
the date on which the principal of such Note or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or otherwise.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


“Net Income” means, with respect to any Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends.


 


“Net Proceeds” means the aggregate cash proceeds received
by the Company or any Restricted Subsidiary in respect of any Asset Sale,
including, without limitation, any cash


 


19

















 


received
upon the sale or other disposition of any Designated Non-cash Consideration
received in any Asset Sale, net of the direct costs relating to such Asset Sale
and the sale or disposition of such Designated Non-cash Consideration,
including, without limitation, legal, accounting and investment banking fees,
and brokerage and sales commissions, any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the repayment of principal, premium, if any,
and interest on Senior Indebtedness required (other than required by
Section 1018(b)(1)) to be paid as a result of such transaction and any
deduction of appropriate amounts to be provided by the Company as a reserve in
accordance with GAAP against any liabilities associated with the asset disposed
of in such transaction and retained by the Company after such sale or other
disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction.


 


“Non-payment
Default” has the
meaning specified in Section 1403 of this Indenture.


 


“Non-U.S.
Person” means a
Person who is not a U.S. Person.


 


“Note Register” and “Note
Registrar” have the
respective meanings specified in Section 305.


 


“Notes” has the meaning stated in the first recital of this Indenture and more
particularly means any Notes authenticated and delivered under this
Indenture.  The Initial Notes and the
Additional Notes shall be treated as a single class for all purposes of this
Indenture, and unless the context otherwise requires, all references to the
Notes shall include the Initial Notes, any Additional Notes and the Exchange
Notes issued in exchange for the Initial Notes and any Additional Notes.


 


“Obligations” means any principal, interest, penalties,
fees, indemnifications, reimbursements (including, without limitation,
reimbursement obligations with respect to letters of credit and banker’s
acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities, payable under the documentation governing any
Indebtedness.


 


“Offering Circular” means the Offering Circular dated
March 30, 2004 relating to the Notes.


 


“Officer” means the Chairman of the Board of
Directors, the Chief Executive Officer, the President, any Executive Vice
President, Senior Vice President or Vice President, the Treasurer or the
Secretary of the Company.


 


“Officers’ Certificate” means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, or the principal accounting
officer of the Company that meets the requirements set forth in this Indenture.


 


20

















 


“Opinion of Counsel” means, with respect to any Person, a written
opinion from legal counsel who is reasonably acceptable to the Trustee. The
counsel may be counsel for such Person, including an employee of such Person.


 


“Outstanding”, when used with respect to Notes, means, as
of the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:


 


(i)                                     Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;


 


(ii)                                  Notes, or portions thereof, for whose payment
or redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Notes; provided
that, if such Notes are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;


 


(iii)                               Notes, except to the extent provided in Sections
1302 and 1303, with respect to which the Company has effected Legal Defeasance
and/or Covenant Defeasance as provided in Article Thirteen; and


 


(iv)                              Notes which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in whose
hands the Notes are valid obligations of the Company;


 


provided, however, that in determining whether the Holders of the requisite principal
amount of Outstanding Notes have given any request, demand, authorization,
direction, consent, notice or waiver hereunder, and for the purpose of making
the calculations required by TIA Section 313, Notes owned by the Company
or any other obligor upon the Notes or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded.


 


“Parent” means Sealy Corporation.


 


“Pari Passu Indebtedness” means any indebtedness of the Company which
ranks pari passu in right of payment to the Notes.


 


“Participant” means, with respect to the Depositary,
Euroclear or Clearstream, a Person who has an account with the Depositary,
Euroclear or Clearstream, respectively (and, with respect to DTC, shall include
Euroclear and Clearstream).


 


21

















 


“Paying Agent” means any Person (including the Company
acting as Paying Agent) authorized by the Company to pay the principal of (and
premium, if any) or interest on any Notes on behalf of the Company.


 


“Payment Blockage Period” has the meaning specified in
Section 1403 of this Indenture.


 


“Payment Default” has the meaning specified in
Section 1403 of this Indenture.


 


“Permitted Asset Swap” means the concurrent purchase and sale or
exchange of Related Business Assets or a combination of Related Business Assets
and cash or Cash Equivalents between the Company or any of its Restricted
Subsidiaries and another Person; provided,
that any cash or Cash Equivalents received must be applied in accordance with
Section 1018.


 


“Permitted Holders” means Kohlberg Kravis Roberts & Co.
L.P., its Affiliates and the Management Group.


 


“Permitted Investments” means:


 


(a)                                  any Investment in the Company or any
Restricted Subsidiary;


 


(b)                                 any Investment in cash and Cash Equivalents
or Investment Grade Securities;


 


(c)                                  any Investment by the Company or any Restricted
Subsidiary of the Company in a Person that is engaged in a Similar Business if
as a result of such Investment;


 


(1)                                  such Person becomes a Restricted Subsidiary,
or


 


(2)                                  such Person, in one transaction or a series
of related transactions, is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary;


 


(d)                                 any Investment in securities or other assets
not constituting cash or Cash Equivalents and received in connection with an
Asset Sale made pursuant to Section 1018, or any other disposition of
assets not constituting an Asset Sale;


 


(e)                                  any Investment existing on the Issue Date;


 


(f)                                    advances to employees not in excess of $10.0
million outstanding at any one time, in the aggregate;


 


(g)                                 any Investment acquired by the Company or any
Restricted Subsidiary


 


22

















 


(1)                                  in exchange for any other Investment or
accounts receivable held by the Company or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the Company of such other Investment or accounts receivable
or


 


(2)                                  as a result of a foreclosure by the Company
or any Restricted Subsidiary with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;


 


(h)                                 Hedging Obligations permitted under
Section 1011(b)(11);


 


(i)                                     loans and advances to officers, directors and
employees for business-related travel expenses, moving expenses and other
similar expenses, in each case incurred in the ordinary course of business;


 


(j)                                     any Investment in a Similar Business having
an aggregate fair market value, taken together with all other Investments made
pursuant to this clause (j) that are at that time outstanding (without giving
effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of
such sale do not consist of cash and/or marketable securities), not to exceed
the greater of (x) $60.0 million and (y) 6.0% of Total Assets at the time of
such Investment (with the fair market value of each Investment being measured
at the time made and without giving effect to subsequent changes in value);


 


(k)                                  Investments the payment for which consists of
Equity Interests of the Company, or any of its direct or indirect parent
corporations (exclusive of Disqualified Stock); provided, however,
that such Equity Interests shall not increase the amount available for
Restricted Payments under Section 1010(a)(C);


 


(l)                                     guarantees of Indebtedness permitted under
Section 1011;


 


(m)                               any transaction to the extent it constitutes
an investment that is permitted and made in accordance with
Section 1013(b) (except transactions described in clauses (2), (6), (7) and
(11) thereof);


 


(n)                                 Investments consisting of purchases and
acquisitions of inventory, supplies, material or equipment or the licensing or
contribution of intellectual property pursuant to joint marketing arrangements
with other Persons;


 


(o)                                 additional Investments having an aggregate
fair market value, taken together with all other Investments made pursuant to
this clause (o) that are at that time outstanding (without giving effect to the
sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do
not consist of cash and/or marketable securities), not to exceed the greater of
(x) $35.0 million and (y) 3.5% of Total Assets at the time of such Investment
(with the fair market value of each Investment being measured at the time made
and without giving effect to subsequent changes in value); and


 


(p)                                 Investments relating to any special purpose
wholly-owned subsidiary of the Company organized in connection with a
Receivables Facility that, in the good faith


 


23

















 


determination
of the Board of Directors of the Company, are necessary or advisable to effect
such Receivables Facility.


 


“Permitted Junior
Securities”


 


(1)                                  Equity Interests in the Company, any
Guarantor or any direct or indirect parent of the Company; or


 


(2)                                  debt securities that are subordinated to all
Senior Indebtedness (and any debt securities issued in exchange for Senior
Indebtedness) to substantially the same extent as, or to a greater extent than,
the Notes and the Subsidiary Guarantees are subordinated to Senior Indebtedness
under this Indenture;


 


provided that the term “Permitted Junior Securities” shall not include any
securities distributed pursuant to a plan of reorganization if the Indebtedness
under the Senior Credit Facilities is treated as part of the same class as the
Notes for purposes of such plan of reorganization.


 


“Permitted Liens” means, with respect to any Person:


 


(1)                                  pledges or deposits by such Person under
workmen’s compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which such Person is
a party, or deposits to secure public or statutory obligations of such Person
or deposits of cash or U.S. government bonds to secure surety or appeal bonds
to which such Person is a party, or deposits as security for contested taxes or
import duties or for the payment of rent, in each case incurred in the ordinary
course of business;


 


(2)                                  Liens imposed by law, such as carriers’,
warehousemen’s and mechanics’ Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings or other Liens arising out
of judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review;


 


(3)                                  Liens for taxes, assessments or other
governmental charges not yet due or payable or subject to penalties for
nonpayment or which are being contested in good faith by appropriate
proceedings;


 


(4)                                  Liens in favor of issuers of performance and
surety bonds or bid bonds or with respect to other regulatory requirements or
letters of credit issued pursuant to the request of and for the account of such
Person in the ordinary course of its business;


 


(5)                                  minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real properties or
Liens incidental, to the conduct of the business of such Person or to the
ownership of its properties which were not incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person;


 


24

















 


(6)                                  (A) 
Liens securing Senior Indebtedness permitted to be incurred pursuant to
Section 1011(a) hereof and (B) Liens securing Indebtedness pursuant to
Section 1011(b)(5) or 1011(b)(14) hereof;


 


(7)                                  Liens existing on the Issue Date;


 


(8)                                  Liens on property or shares of stock of a
Person at the time such Person becomes a Subsidiary; provided, however,
such Liens are not created or incurred in connection with, or in contemplation
of, such other Person becoming such a subsidiary; provided, further,
however, that such Liens may not extend to any other property owned by the
Company or any Restricted Subsidiary;


 


(9)                                  Liens on property at the time the Company or
a Restricted Subsidiary acquired the property, including any acquisition by
means of a merger or consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that such Liens are not created
or incurred in connection with, or in contemplation of, such acquisition; provided, further, however, that the Liens
may not extend to any other property owned by the Company or any Restricted
Subsidiary;


 


(10)                            Liens securing Indebtedness or other
obligations of a Restricted Subsidiary owing to the Company or another
Restricted Subsidiary permitted to be incurred in accordance with
Section 1011 hereof;


 


(11)                            Liens securing Hedging Obligations so long as
the related Indebtedness is, and is permitted under this Indenture to be,
secured by a Lien on the same property securing such Hedging Obligations;


 


(12)                            Liens on specific items of inventory of other
goods and proceeds of any Person securing such Person’s obligations in respect
of bankers’ acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;


 


(13)                            leases and subleases of real property which
do not materially interfere with the ordinary conduct of the business of the
Company or any of the Restricted Subsidiaries;


 


(14)                            Liens arising from Uniform Commercial Code
financing statement filings regarding operating leases entered into by the
Company and its Restricted Subsidiaries in the ordinary course of business;


 


(15)                            Liens in favor of the Company or any
Guarantor;


 


(16)                            Liens on equipment of the Company or any
Restricted Subsidiary granted in the ordinary course of business to the
Company’s client at which such equipment is located;


 


(17)                            Liens on accounts receivable and related
assets incurred in connection with a Receivables Facility;


 


25

















 


(18)                            Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancing, refunding,
extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (6)(B),
(7), (8), (9), (10), (11) and (15); provided
however, that (x) such new Lien shall be limited to all or part of
the same property that secured the original Lien (plus improvements on such
property), and (y) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of (A) the outstanding principal amount
or, if greater, committed amount of the Indebtedness described under clauses
(6)(B), (7), (8), (9), (10), (11) and (15) at the time the original Lien became
a Permitted Lien under this Indenture, and (B) an amount necessary to pay any
fees and expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement; and


 


(19)                            other Liens securing obligations incurred in
the ordinary course of business which obligations do to exceed $25 million at
any one time outstanding.


 


“Person” means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.


 


“Predecessor Note” of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for a mutilated
Note or in lieu of a lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.


 


“Preferred Stock” means any Equity Interest with preferential
rights of payment of dividends or upon liquidation, dissolution, or winding up.


 


“Private Placement Legend” has the meaning specified in
Section 203 of this Indenture.


 


“QIB” means a
“qualified institutional buyer” as defined in Rule 144A.


 


“Qualified Proceeds” means assets that are used or useful in, or
Capital Stock of any Person engaged in, a Similar Business; provided that the fair market value of any
such assets or Capital Stock shall be determined by the Board of Directors in
good faith.


 


“Receivables Facility” means one or more receivables financing
facilities, as amended from time to time, the Indebtedness of which is
non-recourse (except for standard representations, warranties, covenants and
indemnities made in connection with such facilities) to the Company and the
Restricted Subsidiaries pursuant to which the Company and/or any of its
Restricted Subsidiaries sells its accounts receivable to a Person that is not a
Restricted Subsidiary.


 


“Receivables Fees” means distributions or payments made
directly or by means of discounts with respect to any participation interest
issued or sold in connection with, and other fees paid to a Person that is not
a Restricted Subsidiary in connection with, any Receivables Facility.


 


26

















 


“Redemption Date”, when used with respect to any Note to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.


 


“Redemption Price”, when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.


 


“Refinancing Indebtedness” has the meaning specified in
Section 1011 of this Indenture.


 


“Refunding Capital Stock” has the meaning specified in
Section 1010 of this Indenture.


 


“Registration Rights
Agreement” has the
meaning stated in the first recital of this Indenture and, with respect to any
Additional Notes, one or more registration rights agreements among the Company,
the Guarantors and the other parties thereto, as such agreement(s) may be
amended, modified or supplemented from time to time, relating to rights given
by the Company to the purchasers of Additional Notes to register such
Additional Notes under the Securities Act.


 


“Regular Record Date” has the meaning specified in
Section 301 of this Indenture.


 


“Regulation S” means Regulation S under the Securities Act.


 


“Regulation S Global Note” means a Global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903 of
Regulation S.


 


“Related Business Assets” means assets (other than cash or Cash Equivalents)
used or useful in a Similar Business, provided
that any assets received by the Company or a Restricted Subsidiary
in exchange for assets transferred by the Company or a Restricted Subsidiary
shall not be deemed to be Related Business Assets if they consist of securities
of a Person, unless upon receipt of the securities of such Person, such Person
would become a Restricted Subsidiary.


 


“Representative” means the trustee, agent or representative
(if any) for an issuer of Senior Indebtedness.


 


“Responsible Officer”, when used with respect to the Trustee,
means any vice president, any assistant treasurer, any trust officer or
assistant trust officer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.


 


“Restricted Global Note” means a Global Note bearing the Private
Placement Legend.


 


27

















 


“Restricted Investment” means an Investment other than a Permitted
Investment.


 


“Restricted Payments” has the meaning specified in
Section 1010 of this Indenture.


 


“Restricted Period” means the 40-day distribution compliance
period as defined in Regulation S.


 


“Restricted Subsidiary” means, at any time, any direct or indirect
Subsidiary of the Company (including any Foreign Subsidiary) that is not then
an Unrestricted Subsidiary; provided,
however, that upon the occurrence
of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such
Subsidiary shall be included in the definition of “Restricted Subsidiary.”


 


“Retired Capital Stock” has the meaning specified in
Section 1010 of this Indenture.


 


“Rule 144” means Rule 144 promulgated under the
Securities Act.


 


“Rule 144A” means Rule 144A under the Securities Act.


 


“Rule 903” means Rule 903 promulgated under the
Securities Act.


 


“Rule 904” means Rule 904 promulgated under the
Securities Act.


 


“S&P”
means Standard and Poor’s Ratings Group.


 


“Securities Act” means the Securities Act of 1933 and the
rules and regulations of the Commission promulgated thereunder.


 


“Senior Credit Facilities” means the Credit Agreement, dated as of
April 6, 2004, by and among Sealy Mattress Company, Sealy Canada, Ltd.,
Sealy Mattress Corporation, Sealy Corporation, the other credit parties
signatory thereto, J.P. Morgan Securities Inc., Goldman Sachs Credit Partners
L.P., General Electric Capital Corporation, ING Financial Markets LLC, Royal
Bank of Canada, the lenders signatory thereto from time to time and JPMorgan
Chase Bank, as Administrative Agent, including any guarantees, collateral
documents, instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements or
refundings thereof and any indentures or credit facilities or commercial paper
facilities with banks or other institutional lenders or investors that replace,
refund or refinance any part of the loans, notes, other credit facilities or
commitments thereunder, including any such replacement, refunding or
refinancing facility or indenture that increases the amount borrowable
thereunder or alters the maturity thereof.


 


“Senior Indebtedness” means:


 


(1)                                  all Indebtedness of the Company or any
Guarantor outstanding under the Credit Facilities (including interest accruing
on or after the filing of any petition in bankruptcy or for reorganization of
the Company or any Guarantor, regardless of whether or not a claim for
post-filing interest is allowed in such proceedings);


 


28

















 


(2)                                  all Hedging Obligations (and guarantees
thereof) permitted to be incurred under the terms of this Indenture;


 


(3)                                  any other Indebtedness of the Company or any
Guarantor permitted to be incurred under the terms of this Indenture, unless
the instrument under which such Indebtedness is incurred expressly provides
that it is on a parity with or subordinated in right of payment to the Notes or
any Subsidiary Guarantee; and


 


(4)                                  all Obligations with respect to the items
listed in the preceding clauses (1), (2) and (3).


 


“Senior Indebtedness” of any guarantor of the Notes, including the
Guarantors, has a correlative meaning.


 


“Senior Subordinated
Indebtedness” means:


 


(1)                                  with respect to the Company, Indebtedness
which ranks equal in right of payment to the Notes, and


 


(2)                                  with respect to any Guarantor, Indebtedness
which ranks equal in right of payment to the Guarantee of such Guarantor.


 


“Senior Unsecured Term Loan” means the Senior Unsecured Term Loan
Agreement, dated as of April 6, 2004, among the Issuer, the Parent, Sealy
Mattress Corporation, J.P. Morgan Securities, Inc., as joint lead arranger and
joint bookrunner, Goldman Sachs Credit Parties L.P., as joint lead arranger and
joint bookrunner, and the other agents and the lenders party thereto, including
any guarantees, instruments and agreements executed in connection therewith,
and any amendments, supplements, modifications, extensions, renewals,
restatements or refundings thereof and any indentures or credit facilities or
commercial paper facilities with banks or other institutional lenders or
investors that replace, refund or refinance any part of the loans, notes, other
credit facilities or commitments thereunder, including any such replacement,
refunding or refinancing facility or indenture that increases the amount
borrowable thereunder or alters the maturity thereof.


 


“Shelf Registration
Statement” means the
shelf registration statement as defined in the Registration Rights Agreement.


 


“Significant Subsidiary” means any Restricted Subsidiary that would
be a “significant subsidiary” as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such regulation
is in effect on the date hereof.


 


“Similar Business” means any business conducted or proposed to
be conducted by the Company and its Restricted Subsidiaries on the date of this
Indenture or any business that is similar, reasonably related, incidental or
ancillary thereto.


 


“Special Interest” means all special interest then owing
pursuant to the Registration Rights Agreement.


 


29

















 


“Special Interest Notice” has the meaning specified in
Section 1020 hereof.


 


“Special Record Date” for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.


 


“Stated Maturity”, when used with respect to any Note or any
installment of principal thereof or interest thereon, means the date specified
in such Notes as the fixed date on which the principal of such Notes or such
installment of principal or interest is due and payable.


 


“Subordinated Indebtedness” means:


 


(a)                                  with respect to the Company, any Indebtedness
of the Company which is by its terms subordinated in right of payment to the
Notes, and


 


(b)                                 with respect to any Guarantor, any
Indebtedness of such Guarantor which is by its terms subordinated in right of
payment to the Guarantee of such Guarantor.


 


“Subsidiary” means, with respect to any Person,


 


(1)                                  any corporation, association, or other
business entity (other than a partnership, joint venture, limited liability
company or similar entity) of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time of determination owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person or a
combination thereof and


 


(2)                                  any partnership, joint venture, limited
liability company or similar entity of which;


 


(x)                                   more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof whether in the form of membership, general,
special or limited partnership or otherwise, and


 


(y)                                 such Person or any Restricted Subsidiary of
such Person is a controlling general partner or otherwise controls such entity.


 


“Subsidiary Guarantee” means the guarantee by any Subsidiary
Guarantor of the Company’s obligations under this Indenture.


 


“Subsidiary
Guarantor” all of the Company’s direct and indirect Domestic Subsidiaries
existing on the Issue Date and any other Subsidiary of the Company that
executes a supplemental indenture to this Indenture providing for a guarantee
of payment of the Notes.


 


“Successor Company” has the meaning specified in
Section 801 of this Indenture.


 


“Successor Person” has the meaning specified in
Section 802 of this Indenture.


 


30

















 


“Total Assets” means the total assets of the Company and
the Restricted Subsidiaries, as shown on the most recent balance sheet of the
Company.


 


“Transactions” means the (i) the merger of an entity
controlled by affiliates of Kohlberg Kravis Roberts & Co., L.P.  pursuant to the merger agreement dated
March 3, 2004, whereby this entity will merge with and into Parent, with Parent
being the surviving entity; (ii) the equity investment by Kohlberg Kravis
Roberts & Co., L.P. in the Parent of approximately $485.4 million; (iii)
the repayment in full of all of the Company’s outstanding junior subordinated
promissory notes dated December 31, 2003; (iv) the closing of the
Company’s Senior Credit Facilities and the Senior Unsecured Term Loan on the
date of this Indenture; (v) the receipt of approximately $13.6 million from the
settlement of remaining notes receivable from Mattress Firm, Inc; (vi) the
issuance of the Initial Notes; (vii) the repayment of  the Company’s outstanding $300 million aggregate principal amount
of 9 7/8% Senior Subordinated Notes due December 15, 2007 and $128 million
aggregate principal amount of 10 7/8% Senior Subordinated Discount Notes due
December 15, 2007; (viii) the repayment in full of outstanding
indebtedness under that certain Credit Agreement, dated as of February 14,
2001, as amended, among Sealy Canada Ltd./LTEE, the lenders from time to time
thereto, and Bank of America Canada, as agent, and that certain Amended and
Restated Credit Agreement, dated as of November 8, 2002, as amended, among
Sealy Mattress Company, Sealy Mattress Corporation, the lenders from time to
time party thereto, JPMorgan Chase Bank, as administrative agent, and Goldman
Sachs Credit Partners L.P., as syndication agent; and (ix) the issuance, after
the Issue Date, of new options to purchase shares of Class A common stock to
certain members of management relating to the election by such members of
management on or prior to the date of this Indenture to rollover their
outstanding options to purchase common stock of the Parent in connection with
the merger described in clause (i).


 


“Treasury Rate” means, as of any redemption date, the yield
to maturity as of such redemption date of United States Treasury securities
with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) that has become publicly available at
least two business days prior to the redemption date (or, if such Statistical
Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the period from the redemption date to
June 15, 2009; provided, however,
that if the period from the redemption date to June 15, 2009, is less than
one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.


 


“Trust Indenture Act” or
“TIA” means the Trust
Indenture Act of 1939 as in force at the date as of which this Indenture was
executed, except as provided in Section 905.


 


“Trustee” means the Person named as the “Trustee” in
the first paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
“Trustee” shall mean such successor Trustee.


 


“Unrestricted Global Note” means a Global Note that does not bear and
is not required to bear the Private Placement Legend.


 


“Unrestricted Subsidiary” means:


 


31

















 


(1)                                  any Subsidiary of the Company which at the
time of determination is an Unrestricted Subsidiary (as designated by the Board
of Directors of the Company, as provided below), and


 


(2)                                  any Subsidiary of an Unrestricted Subsidiary.


 


The
Board of Directors of the Company may designate any Subsidiary of the Company
(including any existing Subsidiary and any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of
its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds
any lien on, any property of, the Company or any Subsidiary of the Company
(other than any Subsidiary of the Subsidiary to be so designated), provided that


 


(a)                                  any Unrestricted Subsidiary must be an entity
of which shares of the Capital Stock or other equity interests (including
partnership interests) entitled to cast at least a majority of the votes that
may be cast by all shares or equity interests having ordinary voting power for
the election of directors or other governing body are owned, directly or
indirectly, by the Company,


 


(b)                                 such designation complies with
Section 1010, and


 


(c)                                  each of the Subsidiary to be so designated
and its Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to
which the lender has recourse to any of the assets of the Company or any
Restricted Subsidiary.


 


The
Board of Directors of the Company may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided
that, immediately after giving effect to such designation no Default or Event
of Default shall have occurred and be continuing and either:


 


(1)                                  the Company could incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
described under Section 1011(a), or


 


(2)                                  the Fixed Charge Coverage Ratio for the Company
and its Restricted Subsidiaries would be greater than such ratio for the
Company and its Restricted Subsidiaries immediately prior to such designation,
in each case on a pro forma basis taking into account such designation.


 


Any
such designation by the Board of Directors of the Company shall be notified by
the Company to the Trustee by promptly filing with the Trustee a copy of the
Board Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing provisions.


 


“U.S. Person” means a U.S. Person as defined in Rule
902(k) promulgated under the Securities Act.


 


32

















 


“Vice President”, when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title “vice president”.


 


“Voting Stock” of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.


 


“Weighted Average Life to
Maturity” means, when
applied to any Indebtedness, Disqualified Stock or preferred stock, as the case
may be, at any date, the quotient obtained by dividing:


 


(1)                                  the sum of the products of the number of
years from the date of determination to the date of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with
respect to such Disqualified Stock or preferred stock multiplied by the amount
of such payment, by


 


(2)                                  the sum of all such payments.


 


“Wholly Owned Restricted
Subsidiary” means any
Wholly-Owned Subsidiary that is a Restricted Subsidiary.


 


“Wholly Owned Subsidiary” of any Person means a Subsidiary of such
Person, 100% of the outstanding Capital Stock or other ownership interests of
which (other than directors’ qualifying shares) shall at the time be owned by
such Person or by one or more Wholly-Owned Subsidiaries of such Person.


 


SECTION 102.  Compliance Certificates and Opinions.


 


Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers’ Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 1008(a))
shall include:


 


(1)                                  a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;


 


(2)                                  a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;


 


33

















 


(3)                                  a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and


 


(4)                                  a statement as to whether, in the opinion of
each such individual, such condition or covenant has been complied with.


 


SECTION 103.  Form of Documents Delivered to Trustee.


 


In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.


 


Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous.  Any such certificate or opinion may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the possession of
the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.


 


Where
any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.


 


SECTION 104.  Acts of Holders.


 


(a)                                  Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company.  Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments.  Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.


 


(b)                                 The fact and date of the execution by any
Person of any such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution


 


34

















 


thereof.  Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of authority.  The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.


 


(c)                                  The principal amount and serial numbers of
Notes held by any Person, and the date of holding the same, shall be proved by
the Note Register.


 


(d)                                 If the Company shall solicit from the Holders
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so.  Notwithstanding TIA Section 316(c),
such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to
the first solicitation of Holders generally in connection therewith and not
later than the date such solicitation is completed.  If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Outstanding Notes
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Notes shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.  Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Note shall
bind every future Holder of the same Note and the Holder of every Note issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, the Company or any Guarantor in reliance thereon, whether or not
notation of such action is made upon such Note.


 


SECTION 105.  Notices, Etc., to Trustee, Company, any Guarantor and Agent.


 


Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,


 


(1)                                  the Trustee by any Holder or by the Company
or any Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing (which may be via facsimile) to or with
the Trustee at The Bank of New York Trust Company, N.A., 10161 Centurion
Parkway, Jacksonville, Florida 32256, Attention:  Corporate Trust Administration Division, or


 


(2)                                  the Company or any Guarantor by the Trustee
or by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or delivered in
writing and mailed, first-class postage prepaid, or delivered by recognized
overnight courier, to the Company or such Guarantor addressed


 


35

















 


to it at the address of its principal office specified in the first
paragraph, Attention: General Counsel, or at any other address previously
furnished in writing to the Trustee by the Company or such Guarantor.


 


SECTION 106.  Notice to Holders; Waiver.


 


Where
this Indenture provides for notice of any event to Holders by the Company or
the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.  In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.  Notices given by
publication shall be deemed given on the first date on which publication is
made and notices given by first-class mail, postage prepaid, shall be deemed
given five calendar days after mailing.


 


In
case by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause, it shall be impracticable to mail notice of
any event to Holders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice for every purpose hereunder.


 


Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.


 


SECTION 107.  Effect of Headings and Table of Contents.


 


The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.


 


SECTION 108.  Successors and Assigns.


 


All
agreements of the Company in this Indenture and the Notes will bind its
successors.  All agreements of the
Trustee in this Indenture will bind its successors.  All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 1209 hereof.


 


SECTION 109.  Separability Clause.


 


In
case any provision in this Indenture or in the Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


36

















 


SECTION 110.  Benefits of Indenture.


 


Nothing
in this Indenture or in the Notes, express or implied, shall give to any
Person, other than the parties hereto, any Paying Agent, any Notes Registrar
and their successors hereunder, the Holders and, with respect to any provisions
hereof relating to the subordination of the Notes or the rights of holders of
Senior Indebtedness, the holders of Senior Indebtedness, any benefit or any
legal or equitable right, remedy or claim under this Indenture.


 


SECTION 111.  Governing Law.


 


This
Indenture, the Notes and any Guarantee shall be governed by and construed in
accordance with the laws of the State of New York.  This Indenture is subject to the provisions of the Trust
Indenture Act that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.


 


SECTION 112.  [INTENTIONALLY DELETED].


 


SECTION 113.  Legal Holidays.


 


In
any case where any Interest Payment Date, Redemption Date or Stated Maturity or
Maturity of any Note shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Notes) payment of  principal (or premium, if any) or interest
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date, or at the Stated Maturity or Maturity; provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, Stated
Maturity or Maturity, as the case may be.


 


SECTION 114.  No Personal Liability of Directors, Officers, Employees and
Stockholders.


 


No
director, officer, employee, incorporator or stockholder of the Company or any
Guarantor or any of their parent companies shall have any liability for any
obligations of the Company or the Guarantors under the Notes, the Guarantees or
this Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Holder by accepting a Note and the related
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and the Guarantees. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.


 


SECTION 115.  Trust Indenture Act Controls.


 


If
any provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the provision
required by the TIA shall control.  If
any provision of this Indenture modifies or excludes any provision of the TIA
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.


 


37

















 


SECTION 116.  Counterparts.


 


This
Indenture may be executed in any number of counterparts, each of which shall be
original; but such counterparts shall together constitute but one and the same
instrument.


 


ARTICLE TWO


 


NOTE FORMS


 


SECTION 201.  Forms Generally.


 


The
Notes shall be known and designated as “8.25% Senior Subordinated Notes due
2014” of the Company and the Exchange Notes shall be known and designated as
“8.25% Senior Subordinated Exchange Notes due 2014” of the Company.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A hereto.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.  Each Note will be dated the date of its
authentication.  The Notes shall be in
denominations of $1,000 and integral multiples thereof.


 


The
terms and provisions contained in the Notes will constitute, and are hereby
expressly made, a part of this Indenture and the Company, the Guarantors and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with
the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.


 


The
definitive Notes shall be printed, lithographed, typewritten or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Notes, as evidenced by their
execution of such Notes.


 


Notes
issued in global form will be substantially in the form of Exhibit A hereto
(including the Global Note Legend thereon and the “Schedule of Exchanges
of Interests in the Global Note” attached thereto).  Notes issued in definitive form will be substantially in the form
of Exhibit A hereto (but without the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note” attached
thereto).  Each Global Note will
represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding
Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and
redemptions.  Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby will be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 312
hereof.


 


The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable
to transfers


 


38

















 


of
beneficial interests in the Regulation S Global Note that are held by
Participants through Euroclear or Clearstream.


 


Exchange
Notes shall be issued substantially in the form set forth in Exhibit A.


 


SECTION 202.  Form of Trustee’s Certificate of Authentication.


 


The
Trustee shall, upon receipt of a Company Order, authenticate Notes for original
issue that may be validly issued under this Indenture, including any Additional
Notes.  The aggregate principal amount
of Notes outstanding at any time may not exceed the aggregate principal amount
of Notes authorized for issuance by the Company pursuant to one or more Company
Orders, except as provided in Section 306 hereof.


 


The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes.  An authenticating
agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication
by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as an Agent to deal
with Holders or an Affiliate of the Company.


 


Subject
to Section 611, the Trustee’s certificate of authentication shall be in
substantially the following form:


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION.


 


This
is one of the Notes referred to in the within-mentioned Indenture.


 


	
   

  	
  THE
  BANK OF NEW YORK TRUST

  COMPANY, N.A.,

  as Trustee

  	 

	
   

  	
   

  	 

	
   

  	 

	
  Dated:  

  	
   

  	
   

  	 

	
   

  	 

	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	 

							



 


SECTION 203.  Restrictive Legends.


 


Unless
and until (i) a Note is sold pursuant to an effective Shelf Registration
Statement or (ii) a Note is exchanged for an Exchange Note in an Exchange Offer
pursuant to an effective Exchange Offer Registration Statement, in either case,
pursuant to this Indenture and the Registration Rights Agreement, it being
expressly understood that the Trustee shall have no obligation to monitor or
otherwise determine compliance with the Registration Rights Agreement, each
Restricted Global Note, Definitive Note and Regulation S Global Note shall bear
the following legend set forth below (the “Private Placement Legend”) on the
face thereof:


 


THE
NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE


 


39

















 


“SECURITIES
ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.


 


Each
Global Note, whether or not an Initial Note, shall also bear the following
legend on the face thereof:


 


UNLESS
THIS CERTIFICATE IS PRESENTED, BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
BECAUSE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 312 OF THE INDENTURE.


 


SECTION 204.  [INTENTIONALLY DELETED].


 


40

















 


ARTICLE THREE


 


THE NOTES


 


SECTION 301.  Title and Terms.


 


The
aggregate principal amount of Notes which may be authenticated and issued under
this Indenture is not limited; provided,
however that any Additional Notes issued under this Indenture are
issued in accordance with Sections 303 and 1011 hereof, as part of the same
series as the Initial Notes.


 


The
Notes shall be known and designated as the “8.25% Senior Subordinated Notes due
2014” of the Company.  The Stated
Maturity of the Notes shall be June 15, 2014, and the Notes shall bear
interest at the rate of 8.25% per annum from April 6, 2004, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, payable on December 15, 2004 and semi-annually thereafter on
June 15 and December 15 in each year and at said Stated Maturity,
until the principal thereof is paid or duly provided for and to the Person in
whose name the Note (or any predecessor Note) is registered at the close of
business on the June 1 and December 1 immediately preceding such
Interest Payment Date (each, a “Regular Record Date”).


 


The
principal of (and premium, if any), interest and Special Interest, if any, on
the Notes shall be payable at the office or agency of the Company maintained
for such purpose in The City and State of New York or, at the option of the
Company, payment of interest may be made by check mailed to the Holders of the
Notes at their respective addresses set forth in the Note Register of Holders; provided that all payments of principal,
premium, if any, and interest and Special Interest, if any, with respect to
Notes represented by one or more permanent Global Notes registered in the name
of or held by Depositary or its nominee will be made by wire transfer of
immediately available funds to the accounts specified by the Holder or Holders
thereof.  Until otherwise designated by
the Company, the Company’s office or agency in New York shall be the office of
the trustee maintained for such purpose.


 


Holders
shall have the right to require the Company to purchase their Notes, in whole
or in part, in the event of a Change in Control pursuant to
Section 1017.  The Notes shall be
subject to repurchase pursuant to an Offer to Purchase as provided in
Section 1018.


 


The
Notes shall be redeemable as provided in Article Eleven.


 


The
Notes shall be subordinated in right of payment to Senior Indebtedness as
provided in Article Fourteen.


 


The
due and punctual payment of principal of, premium, if any, and interest on the
Notes payable by the Company is irrevocably unconditionally guaranteed, to the
extent set forth herein, by each of the Guarantors.  The Guarantee issued by any Guarantor will be subordinated to all
existing and future Guarantor Senior Indebtedness of such Guarantor as provided
in Article Twelve.


 


41

















 


SECTION 302.  Denominations.


 


The
Notes shall be issuable only in registered form without coupons and only in
denominations of $1,000 and any integral multiple thereof.


 


SECTION 303.  Execution, Authentication, Delivery and Dating.


 


The
Notes shall be executed on behalf of the Company by any two Officers.  The signature of any Officer on the Notes
may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the Notes.


 


Notes
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.


 


At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Notes, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Notes.


 


On
the Issue Date, the Company shall deliver the Initial Notes in the aggregate
principal amount of $390,000,000 executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Notes, directing the Trustee to authenticate the Notes and
certifying that all conditions precedent to the issuance of Notes contained
herein have been fully complied with, and the Trustee in accordance with such
Company Order shall authenticate and deliver such Initial Notes.  At any time and from time to time after the
Issue Date, the Company may deliver Additional Notes executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Additional Notes, directing the Trustee to
authenticate the Additional Notes and certifying that the issuance of such
Additional Notes is in compliance with Article Ten hereof and that all
other conditions precedent to the issuance of Notes contained herein have been
fully complied with, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Additional Notes.  On Company Order, the Trustee shall authenticate for original
issue Exchange Notes in an aggregate principal amount not to exceed
$390,000,000 plus the aggregate principal amount of any Additional Notes
issued; provided that such
Exchange Notes shall be issuable only upon the valid surrender for cancellation
of Initial Notes and any Additional Notes of a like aggregate principal amount
in accordance with an Exchange Offer pursuant to the Registration Rights
Agreement and a Company Order for the authentication and delivery of such
Exchange Notes and certifying that all conditions precedent to the issuance of
such Exchange Notes are complied with (including the effectiveness of the
Exchange Offer Registration Statement related thereto).  In each case, the Trustee shall receive an
Officers’ Certificate and an Opinion of Counsel of the Company that it may
reasonably require in connection with such authentication of Notes.  Such order shall specify the amount of Notes
to be authenticated and the date on which the original issue of Notes is to be
authenticated.


 


42

















 


Each
Note shall be dated the date of its authentication.


 


No
Note shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.


 


In
case the Company or any Guarantor, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company or such
Guarantor shall have been merged, or the Person which shall have received a
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed a supplemental indenture hereto with the Trustee pursuant to
Article Eight, any of the Notes authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Notes executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Notes surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Notes as specified in such request for the purpose of
such exchange.  If Notes shall at any
time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon
registration of transfer of any Notes, such successor Person, at the option of
the Holders but without expense to them, shall provide for the exchange of all
Notes at the time Outstanding for Notes authenticated and delivered in such new
name.


 


SECTION 304.  Temporary Notes.


 


Pending
the preparation of definitive Notes, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as conclusively evidenced by their execution of such Notes.


 


If
temporary Notes are issued, the Company will cause definitive Notes to be
prepared without unreasonable delay. 
After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency of the Company designated for such purpose pursuant to
Section 1002, without charge to the Holder.  Upon surrender for cancellation of any one or more temporary
Notes, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Notes of authorized
denominations.  Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes.


 


43

















 


SECTION 305.  Registration, Registration of Transfer and Exchange.


 


The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 1002 being herein sometimes referred
to as the “Note Register”) in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Notes and
of transfers of Notes.  The Note
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. 
At all reasonable times, the Note Register shall be open to inspection
by the Trustee.  The Trustee is hereby
initially appointed as note registrar (the “Note Registrar”) for the purpose of
registering Notes and transfers of Notes as herein provided.


 


Upon
surrender for registration of transfer of any Note at the office or agency of
the Company designated pursuant to Section 1002, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denomination or denominations of a like aggregate principal amount.


 


At
the option of the Holder, Notes may be exchanged for other Notes of any
authorized denomination and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency.  Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver,
the Notes which the Holder making the exchange is entitled to receive; provided that no exchange of Notes for
Exchange Notes shall occur until an Exchange Offer Registration Statement shall
have been declared effective by the Commission, the Trustee shall have received
an Officers’ Certificate confirming that the Exchange Offer Registration
Statement has been declared effective by the Commission and the Initial Notes
to be exchanged for the Exchange Notes shall be cancelled by the Trustee.


 


All
Notes issued upon any registration of transfer or exchange of Notes shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.


 


Every
Note presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Note Registrar) be duly endorsed,
or be accompanied by written instruments of transfer, in form satisfactory to
the Company and the Note Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.


 


No
service charge shall be made for any registration of transfer or exchange or
redemption of Notes, but the Company may require payment of a sum sufficient to
cover any taxes, fees or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Sections 303, 304, 906, 1017, 1018, or 1108 not involving
any transfer.


 


SECTION 306.  Mutilated, Destroyed, Lost and Stolen Notes.


 


If
(i) any mutilated Note is surrendered to the Trustee, or (ii) the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, and


 


44

















 


there
is delivered to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Note has been acquired by a bona
fide purchaser, the Company shall execute and upon Company Order the Trustee
shall authenticate and deliver, in exchange for any such mutilated Note or in
lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, bearing a number not contemporaneously outstanding.


 


In
case any such mutilated, destroyed, lost or stolen Note has become or is about
to become due and payable, the Company in its discretion may, instead of
issuing a new Note, pay such Note.


 


Upon
the issuance of any new Note under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.


 


Every
new Note issued pursuant to this Section in lieu of any mutilated,
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company and each Guarantor, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.


 


The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.


 


SECTION 307.  Payment of Interest; Interest Rights Preserved.


 


Interest
on any Note which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name such Note
(or one or more Predecessor Notes) is registered at the close of business on
the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided,
however, that, subject to Section 301 hereof, each installment
of interest may at the Company’s option be paid by (i) mailing a check for such
interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 308, to the address of such Person as it appears in
the Note Register or (ii) transfer to an account located in the United States
maintained by the payee.


 


Any
interest on any Note which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the Holder on the Regular Record Date by virtue of having been such Holder,
and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Notes (such defaulted interest and
interest thereon herein collectively called “Defaulted Interest”) may be paid
by the Company, at its election in each case, as provided in clause (1) or (2)
below:


 


(1)                                  The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special Record
Date for the payment of such Defaulted


 


45

















 


Interest,
which shall be fixed in the following manner. 
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Note and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.  Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment.  The
Trustee shall promptly notify the Company of such Special Record Date, and in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
given in the manner provided for in Section 106, not less than 10 days
prior to such Special Record Date. 
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so given, such Defaulted Interest
shall be paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).


 


(2)                                  The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.


 


Subject
to the foregoing provisions of this Section, each Note delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.


 


SECTION 308.  Persons Deemed Owners.


 


Prior
to the due presentment of a Note for registration of transfer, the Company, any
Guarantor, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Note is registered as the owner of such Note for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.


 


SECTION 309.  Cancellation.


 


All
Notes surrendered for payment, redemption, registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee


 


46

















 


and
shall be promptly cancelled by it.  The
Company may at any time deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Notes previously
authenticated hereunder which the Company has not issued and sold, and all
Notes so delivered shall be promptly cancelled by the Trustee.  If the Company shall so acquire any of the
Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation.  No Notes shall be authenticated in lieu of or in exchange for any
Notes cancelled as provided in this Section, except as expressly permitted by
this Indenture.  All cancelled Notes
held by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures unless by Company Order the Company shall direct that cancelled
Notes be returned to it.


 


SECTION 310.  Computation of Interest.


 


Interest
on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.


 


SECTION 311.  [INTENTIONALLY DELETED].


 


SECTION 312.  Book-Entry and Transfer Provisions.


 


(a)                                  Transfer and Exchange of Global Notes.  A
Global Note may not be transferred except as a whole by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.  All Global Notes will be exchanged by the
Company for Definitive Notes if:


 


(1)                                  the Depositary (a) notifies the Company that
it is unwilling or unable to continue as depositary for the Global Notes or (b)
has ceased to be a clearing agency registered under the Exchange Act and, in
either case, the Company fails to appoint a successor depositary;


 


(2)                                  the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of the Definitive
Notes; or


 


(3)                                  there has occurred and is continuing a
Default or Event of Default with respect to the Notes.


 


Upon
the occurrence of either of the preceding events in (1) or (2) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee.  Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 304 and 306
hereof.  Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Sections 304 or 306 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note.  A Global Note may not be exchanged for another
Note other than as provided in this Section 312(a), however, beneficial


 


47

















 


interests
in a Global Note may be transferred and exchanged as provided in
Section 312(b), (c) or (f) hereof.


 


(b)                                 Transfer and Exchange of Beneficial Interests
in the Global Notes.  The transfer and exchange of beneficial
interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures.  Beneficial interests in the Restricted Global
Notes will be subject to restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act.  Transfers of beneficial interests in the Global Notes also will
require compliance with either subparagraph (1) or (2) below, as applicable, as
well as one or more of the other following subparagraphs, as applicable:


 


(1)                                  Transfer of Beneficial
Interests in the Same Global Note.  Beneficial interests in any
Restricted Global Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Global Note may not be made to a U.S. Person or
for the account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note.  No written
orders or instructions shall be required to be delivered to the Note Registrar
to effect the transfers described in this Section 312(b)(1).


 


(2)                                    All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to
Section 312(b)(1) above, the transferor of such beneficial interest must
deliver to the Note Registrar either:


 


(A)                              both:


 


(x)                                   a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the beneficial
interest to be transferred or exchanged; and


 


(y)                                 instructions given in accordance with the
Applicable Procedures containing information regarding the Participant account
to be credited with such increase; or


 


(B)                                both:


 


(x)                                   a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Note in
an amount equal to the beneficial interest to be transferred or exchanged; and


 


48

















 


(y)                                 instructions given by the Depositary to the
Note Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange referred
to in (A) above;


 


Upon
consummation of an Exchange Offer by the Company in accordance with
Section 312(f) hereof, the requirements of this Section 312(b)(2)
shall be deemed to have been satisfied upon receipt by the Note Registrar of
the instructions contained in the Letter of Transmittal delivered by the Holder
of such beneficial interests in the Restricted Global Notes.  Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 312(g) hereof.


 


(3)                                  Transfer of Beneficial Interests
to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 312(b)(2) above and:


 


(A)                              if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then the transferor must
deliver to the Note Registrar a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof;


 


(B)                                if the transferee will take delivery in the
form of a beneficial interest in)
the Regulation S Global Note, then the transferor must deliver to the Note
Registrar a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and


 


(C)                                if the transferee will take delivery in the
form of a beneficial interest in the IAI Global Note, then the transferor must
deliver to the Note Registrar a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3)(d) thereof, if applicable.


 


(4)                                  Transfer and Exchange of
Beneficial Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note.  A beneficial interest in any Restricted
Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note if
the exchange or transfer complies with the requirements of
Section 312(b)(2) above and:


 


(A)                              such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a
Person who is an affiliate (as defined in Rule 144) of the Company;


 


49

















 


(B)                                such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(C)                                such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or


 


(D)                               the Note Registrar receives the following:


 


(x)                                   if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in item (1)(a)
thereof; or


 


(y)                                 if the holder of such beneficial interest in
a Restricted Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;


 


and,
in each such case set forth in this subparagraph (D), if the Note Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Note Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


If
any such transfer is effected pursuant to subparagraph (B) or (D) above at a
time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Company Order in accordance with
Section 202 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.


 


(c)                                  Transfer or Exchange of Beneficial Interests
for Definitive Notes.  Beneficial interests in an Unrestricted
Global Note cannot be exchanged for, or transferred to Persons who take
delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.


 


(1)                                  Beneficial Interests in
Restricted Global Notes to Restricted Definitive Notes.  If
any holder of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the Note Registrar
of the following documentation:


 


(A)                              if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;


 


50

















 


(B)                                if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (1)
thereof;


 


(C)                                if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;


 


(D)                               if such beneficial interest is being
transferred pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;


 


(E)                                 if such beneficial interest is being
transferred to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the effect set
forth in Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, if applicable;


 


(F)                                 if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or


 


(G)                                if such beneficial interest is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,


 


the
Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 312(g) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount.  Any Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 312(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Note Registrar through instructions from
the Depositary and the Participant or Indirect Participant.  The Trustee shall deliver such Definitive
Notes to the Persons in whose names such Notes are so registered.  Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this
Section 312(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.


 


(2)                                  Beneficial Interests in
Restricted Global Notes to Unrestricted Definitive Notes.  A
holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:


 


51

















 


(A)                              such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a
Person who is an affiliate (as defined in Rule 144) of the Company;


 


(B)                                such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(C)                                such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or


 


(D)                               the Note Registrar receives the following:


 


(x)                                   if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(b) thereof; or


 


(y)                                 if the holder of such beneficial interest in
a Restricted Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;


 


and,
in each such case set forth in this subparagraph (e), if the Note Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Note Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


(3)                                  Beneficial Interests in
Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 312(b)(2) hereof, the Trustee will
cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 312(g) hereof, and the Company
will execute and the Trustee will authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal
amount.  Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 312(c)(3) will
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through
instructions to the Note Registrar from or


 


52

















 


through
the Depositary and the Participant or Indirect Participant.  The Trustee will deliver such Definitive
Notes to the Persons in whose names such Notes are so registered.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 312(c)(3) will not bear the
Private Placement Legend.


 


(d)                                 Transfer and Exchange of Definitive Notes for
Beneficial Interests.


 


(1)                                  Restricted Definitive Notes
to Beneficial Interests in Restricted Global Notes.   If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Note Registrar of the following documentation:


 


(A)                              if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;


 


(B)                                if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (1)
thereof;


 


(C)                                if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;


 


(D)                               if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;


 


(E)                                 if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the effect set
forth in Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, if applicable;


 


(F)                                 if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or


 


(G)                                if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,


 


53

















 


the
Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global
Note, and in all other cases, the IAI Global Note.


 


(2)                                  Restricted Definitive Notes
to Beneficial Interests in Unrestricted Global Notes.  A
Holder of a Restricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:


 


(A)                              such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of
the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;


 


(B)                                such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(C)                                such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or


 


(D)                               the Note Registrar receives the following:


 


(x)                                   if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or


 


(y)                                 if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery thereof in
the form of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;


 


and,
in each such case set forth in this subparagraph (2), if the Note Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Note Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


Upon satisfaction of the conditions of any of the
subparagraphs in this Section 312(d)(2), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.


 


(3)                                  Unrestricted Definitive
Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a


 


54

















 


beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. 
Upon receipt of a request for such an exchange or transfer, the Trustee
will cancel the applicable Unrestricted Definitive Note and increase or cause
to be increased the aggregate principal amount of one of the Unrestricted
Global Notes.


 


If any such exchange or transfer from a Definitive
Note to a beneficial interest is effected pursuant to subparagraphs (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has not yet been
issued, the Company will issue and, upon receipt of an Company Order in
accordance with Section 202 hereof, the Trustee will authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.


 


(e)                                  Transfer and Exchange of Definitive Notes for
Definitive Notes.  Upon request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 312(e),
the Note Registrar will register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Note Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Note Registrar duly executed by such
Holder or by its attorney, duly authorized in writing.  In addition, the requesting Holder must
provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this
Section 312(e).


 


(1)                                  Restricted Definitive Notes
to Restricted Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Note Registrar receives the
following:


 


(A)                              if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;


 


(B)                                if the transfer will be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof; and


 


(C)                                if the transfer will be made pursuant to any
other exemption from the registration requirements of the Securities Act, then
the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable.


 


(2)                                  Restricted Definitive Notes
to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof
for an Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note if:


 


55

















 


(1)                                  such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of
the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;


 


(2)                                  any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(3)                                  any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or


 


(4)                                  the Note Registrar receives the following:


 


(x)                                   if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or


 


(y)                                 if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;


 


and,
in each such case set forth in this subparagraph (D), if the Note Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Note
Registrar to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


(3)                                  Unrestricted Definitive
Notes to Unrestricted Definitive Notes.  A Holder of Unrestricted
Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note.  Upon receipt of a request to register such a transfer, the Note
Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.


 


(f)                                    Exchange Offer.  Upon
the occurrence of the Exchange Offer in accordance with the Registration Rights
Agreement, the Company will issue and, upon receipt of an Company Order in
accordance with Section 202 hereof, the Trustee will authenticate:


 


(1)                                  one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A)
they are not Broker-Dealers, (B) they are not participating in a distribution
of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company; and


 


56

















 


(2)                                  Unrestricted Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer by Persons that certify in
the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B)
they are not participating in a distribution of the Exchange Notes and (C) they
are not affiliates (as defined in Rule 144) of the Company.


 


Concurrently with the issuance of such Notes, the
Trustee will cause the aggregate principal amount of the applicable Restricted
Global Notes to be reduced accordingly, and the Company will execute and the
Trustee will authenticate and deliver to the Persons designated by the Holders
of Definitive Notes so accepted Unrestricted Definitive Notes in the
appropriate principal amount.


 


(g)                                 Cancellation
and/or Adjustment of Global Notes. 
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note will be returned to or retained and canceled by the Trustee in accordance
with Section 309 hereof.  At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by such Global Note will be reduced
accordingly and an endorsement will be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.


 


(h)                                 General Provisions Relating to Transfers and
Exchanges.


 


(1)                                  To permit registrations of transfers and
exchanges, the Company will execute and the Trustee will authenticate Global
Notes and Definitive Notes upon receipt of an Company Order in accordance with
Section 202 hereof or at the Note Registrar’s request.


 


(2)                                  No service charge will be made to a Holder of
a beneficial interest in a Global Note or to a Holder of a Definitive Note for
any registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 304,
903, 1017, 1018 and 1107 hereof.


 


(3)                                  The Note Registrar will not be required to
register the transfer of or exchange of any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.


 


(4)                                  All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the


 


57

















 


Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.


 


(5)                                  Neither the Note Registrar nor the Company
will be required:


 


(A)                              to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of Notes under
Section 1104 hereof and ending at the close of business on the day of such
mailing;


 


(B)                                to register the transfer of or to exchange
any Note selected for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part; or


 


(C)                                to register the transfer of or to exchange a
Note between a record date and the next succeeding interest payment date.


 


(6)                                  Prior to due presentment for the registration
of a transfer of any Note, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent or
the Company shall be affected by notice to the contrary.


 


(7)                                  The Trustee will authenticate Global Notes
and Definitive Notes in accordance with the provisions of Section 202
hereof.


 


(8)                                  All certifications, certificates and Opinions
of Counsel required to be submitted to the Note Registrar pursuant to this
Section 312 to effect a registration of transfer or exchange may be
submitted by facsimile.


 


(9)                                  The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Note (including any transfers between or
among Depositary Participants or beneficial owners of interests in any Global
Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the
same to determine compliance as to form with the express requirements hereof.


 


(10)                            Neither the Trustee nor any Agent shall have
any responsibility for any actions taken or not taken by the Depositary.


 


SECTION 313.  [INTENTIONALLY DELETED].


 


SECTION 314.  [INTENTIONALLY DELETED].


 


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SECTION 315.  CUSIP Numbers. The Company in issuing the Notes may use
“CUSIP” numbers (if then generally in use) in addition to serial numbers, and,
if so, the Trustee shall use such “CUSIP” numbers in addition to serial numbers
in notices of redemption, repurchase or other notices to Holders as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such CUSIP numbers either as
printed on the Notes or as contained in any notice of a redemption or
repurchase and that reliance may be placed only on the serial or other
identification numbers printed on the Notes, and any such redemption or
repurchase shall not be affected by any defect in or omission of such
numbers.  The Company will promptly
notify the Trustee in writing of any change in the CUSIP numbers.


 


SECTION 316.  Issuance of Additional Notes. The Company may, subject to Section 1011 of this Indenture,
issue additional Notes having identical terms and conditions to the Initial
Notes issued on the Issue Date (the “Additional Notes”). The Initial Notes
issued on the Issue Date and any Additional Notes subsequently issued shall be
treated as a single class for all purposes under this Indenture.  Exchange Notes issued in exchange for
Initial Notes issued on the Issue Date and Exchange Notes issued for any
Additional Notes subsequently issued shall be treated as a single class for all
purposes under this Indenture.


 


ARTICLE FOUR


 


SATISFACTION AND DISCHARGE


 


SECTION 401.  Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request
cease to be of further effect (except as to surviving rights of registration of
transfer or exchange of Notes expressly provided for herein or pursuant hereto)
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture when:


 


(1)                                  either,


 


(a)                                  all Notes theretofore authenticated and
delivered (other than (i) Notes which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii) Notes
for whose payment money has theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or


 


(b)                                 all such Notes not theretofore delivered to
the Trustee for cancellation,


 


(i)                                     have become due and payable by reason of the
making of a notice of redemption pursuant to Section 1105 or otherwise, or


 


(ii)                                  will become due and payable at their Stated
Maturity within one year, or


 


59

















 


(iii)                               are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,


 


and
the Company or any Guarantor, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as will be sufficient without consideration of any reinvestment of interest to
pay and discharge the entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if any)
and interest to the date of such deposit (in the case of Notes which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;


 


(2)                                  no Default or Event of Default (other than
that resulting from borrowing funds to be applied to make such deposit) with
respect to this Indenture or the Notes shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such deposit and such
deposit shall not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company or any Guarantor is a party or
by which the Company or any Guarantor is bound;


 


(3)                                  the Company has paid or caused to be paid all
sums payable by it under this Indenture;


 


(4)                                  the Company has delivered irrevocable
instructions to the Trustee under this Indenture to apply the deposited money
toward the payment of such Notes at the Stated Maturity or the Redemption Date,
as the case may be; and


 


(5)                                  the Company has delivered to the Trustee an
Officers Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein to the satisfaction and discharge of this Indenture
have been complied with.


 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607, the obligations of the Company
to any Authenticating Agent under Section 612 and, if money or Government
Securities shall have been deposited with the Trustee pursuant to subclause (b)
of clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive such
satisfaction and discharge.


 


SECTION 402.  Application of Trust Money.


 


Subject
to the provisions of the last paragraph of Section 1003, all money or
Government Securities deposited with the Trustee pursuant to Section 401
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money or Government
Securities has been


 


60

















 


deposited
with the Trustee; but such money or Government Securities need not be
segregated from other funds except to the extent required by law.


 


If
the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 401 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company’s and any Guarantor’s obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to
Section 401 until such time as the Trustee or Paying Agent is permitted to
apply all such money or Government Securities in accordance with
Section 401; provided that
if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.


 


ARTICLE FIVE


 


REMEDIES


 


SECTION 501.  Events of Default. “Event of Default”, wherever used herein,
means one of the following events (whatever the reason for such Event of
Default and whether it shall be occasioned by the provisions of
Article Fourteen or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):


 


(1)                                  default in payment when due and payable, upon
redemption, acceleration or otherwise, of principal of, or premium, if any, on
the Notes issued under this Indenture whether or not such payment shall be
prohibited by Article Fourteen hereof;


 


(2)                                  default for 30 days or more in the payment
when due of interest on or with respect to the Notes issued under this
Indenture whether or not such payment shall be prohibited by
Article Fourteen hereof;


 


(3)                                  failure by the Company or any Subsidiary
Guarantor for 30 days after receipt of written notice given by the Trustee or
the Holders of at least 30% in principal amount of the Notes then outstanding
and issued under this Indenture to comply with any of its other agreements in
this Indenture or the Notes;


 


(4)                                  default under any mortgage, indenture or
instrument under which there is issued or by which there is secured or
evidenced any Indebtedness for money borrowed by the Company or any Restricted
Subsidiary or the payment of which is guaranteed by the Company or any Restricted
Subsidiary, other than Indebtedness owed to the Company or a Restricted
Subsidiary, whether such Indebtedness or guarantee now exists or is created
after the issuance of the Notes, if both


 


(A)                              such default either (x) results from the
failure to pay any such Indebtedness at its stated final maturity (after giving
effect to any applicable grace


 


61

















 


periods)
or (y) relates to an obligation other than the obligation to pay principal of
any such Indebtedness at its stated final maturity and results in the holder or
holders of such Indebtedness causing such Indebtedness to become due prior to
its stated maturity and


 


(B)                                the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in default
for failure to pay principal at stated final maturity (after giving effect to
any applicable grace periods), or the maturity of which has been so
accelerated, aggregate $25.0 million or more at any one time outstanding;


 


(5)                                  failure by the Company or any Significant
Subsidiary to pay final judgments aggregating in excess of $25.0 million, which
final judgments remain unpaid, undischarged and unstayed for a period of more
than 60 days after such judgment becomes final, and in the event such judgment
is covered by insurance, an enforcement proceeding has been commenced by any
creditor upon such judgment or decree which is not promptly stayed;


 


(6)                                  any of the following events with respect to
the Company or any Significant Subsidiary:


 


(A)                              the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law


 


(i)                                     commences a voluntary case;


 


(ii)                                  consents to the entry of an order for relief
against it in an involuntary case;


 


(iii)                               consents to the appointment of a Custodian of
it or for any substantial part of its property;


 


(iv)                              takes any comparable action under any foreign
laws relating to insolvency; or


 


(B)                                a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:


 


(i)                                     is for relief against the Company or any
Significant Subsidiary in an involuntary case;


 


(ii)                                  appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its property; or


 


(iii)                               orders the winding up or liquidation of the
Company or any Significant Subsidiary;


 


and
the order or decree remains unstayed and in effect for 60 days; or


 


62

















 


(7)                                  the Guarantee of any Significant Subsidiary
shall for any reason cease to be in full force and effect or be declared null
and void or any responsible officer of any Guarantor that is a Significant
Subsidiary, as the case may be, denies that it has any further liability under
its Guarantee or gives notice to such effect, other than by reason of the
termination of this Indenture or the release of any such Guarantee in
accordance with this Indenture.


 


SECTION 502.  Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other than an Event
of Default specified in Section 501(6) above) occurs and is continuing,
then and in every such case the Trustee or the Holders of at least 30% in
principal amount of the Outstanding Notes issued under this Indenture may
declare the principal, premium, if any, interest and any other monetary
obligations on all the Outstanding Notes to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders); provided, however,
that, so long as any Indebtedness permitted to be incurred under this Indenture
as part of the Senior Credit Facilities or the Senior Unsecured Term Loan shall
be outstanding, no such acceleration shall be effective until the earlier of


 


(1)                                  acceleration of any such Indebtedness under
such Senior Credit Facilities or the Senior Unsecured Term Loan, as the case
may be, or


 


(2)                                  five Business Days after the giving of
written notice of such acceleration to the Company and the administrative agent
under each of such Senior Credit Facilities and the Senior Unsecured Term Loan.


 


Upon
the effectiveness of such declaration, such principal and interest will be due
and payable immediately. 
Notwithstanding the foregoing, if an Event of Default specified in
Section 501(6) above occurs and is continuing, then the principal amount
of all Outstanding Notes shall ipso facto become and be immediately due and
payable without any notice, declaration or other act on the part of the Trustee
or any Holder.


 


At
any time after a declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article, the Holders of a majority in
aggregate principal amount of the Outstanding Notes, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:


 


(a)                                  the Company has paid or deposited with the
Trustee a sum sufficient to pay:


 


(A)                              all overdue interest on all Outstanding
Notes,


 


(B)                                all unpaid principal of (and premium, and
Special Interest, if any, on) any Outstanding Notes which has become due
otherwise than by such declaration of acceleration, and interest on such unpaid
principal at the rate borne by the Notes,


 


(C)                                to the extent that payment of such interest
is lawful, interest on overdue interest at the rate borne by the Notes, and


 


63

















 


(D)                               all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and


 


(b)                                 Events of Default, other than the non-payment
of amounts of principal of (or premium, if any, on) or interest on Notes which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513,


 


no
such rescission shall affect any subsequent default or impair any right
consequent thereon.


 


Notwithstanding
the preceding paragraph, in the event of any Event of Default specified in
Section 501(4) above, such Event of Default and all consequences thereof
(excluding any resulting payment default) shall be annulled, waived and
rescinded, automatically and without any action by the Trustee or the Holders,
if within 20 days after such Event of Default arose,


 


(x)                                   the Indebtedness or guarantee that is the
basis for such Event of Default has been discharged, or


 


(y)                                 the holders thereof have rescinded or waived
the acceleration, notice or action (as the case may be) giving rise to such
Event of Default, or


 


(z)                                   if the default that is the basis for such
Event of Default has been cured.


 


Upon
a determination by the Company that the Senior Credit Facilities are no longer
in effect, the Company shall promptly give to the Trustee written notice
thereof, which notice shall be countersigned by the Agent. Unless and until the
Trustee shall have received such written notice with respect to the Senior
Credit Facilities, the Trustee, subject to the TIA Sections 315(a) through
315(d), shall be entitled in all respects to assume that the Senior Credit
Facilities are in effect (unless a Responsible Officer of the Trustee shall
have actual knowledge to the contrary).


 


SECTION 503.  Collection of Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants that if:


 


(a)                                  default is made in the payment of any
installment of interest on any Note when such interest becomes due and payable
and such default continues for a period of 30 days, or


 


(b)                                 default is made in the payment of the
principal of (or premium, or Special Interest, if any, on) any Note at the
Maturity thereof,


 


the
Company will, upon demand of the Trustee, pay to the Trustee for the benefit of
the Holders of such Notes, the whole amount then due and payable on such Notes
for principal (and premium, if any) and interest, and interest on any overdue
principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue


 


64

















 


installment
of interest, at the rate borne by the Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


If
the Company fails to pay such amounts forthwith upon such demand, the Trustee,
in its own name as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same against the
Company, any Guarantor or any other obligor upon the Notes and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company, any Guarantor or any other obligor upon the Notes,
wherever situated.


 


If
an Event of Default occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders under
this Indenture and the Guarantees by such appropriate judicial proceedings as
the Trustee shall deem necessary to protect and enforce any such rights,
including seeking recourse against any Guarantor, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy,
including but without limitation, seeking recourse against any Guarantor.


 


SECTION 504.  Trustee May File Proofs of Claim.


 


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor including any
Guarantor, upon the Notes or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,


 


(i)                                     to file and prove a claim for the whole
amount of principal (and premium, if any) and interest owing and unpaid in
respect of the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and


 


(ii)                                  to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,


 


65

















 


disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 607.


 


Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.


 


SECTION 505.  Trustee May Enforce Claims Without Possession of Notes.


 


All
rights of action and claims under this Indenture or the Notes may be prosecuted
and enforced by the Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name and as trustee of an
express trust, and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been recovered.


 


SECTION 506.  Application of Money Collected.


 


Subject
to Article Fourteen, any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation of the Notes
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:


 


FIRST:  To the payment of all amounts due the
Trustee under Section 607;


 


SECOND:  To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on the Notes in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Notes for principal (and premium, if any) and interest,
respectively; and


 


THIRD:  The balance, if any, to the Company or any
other obligor on the Notes, as their interests may appear or as a court of
competent jurisdiction may direct in writing; provided that all sums due
and owing to the Holders and the Trustee have been paid in full as required by
this Indenture.


 


SECTION 507.  Limitation on
Suits.


 


No
Holder of any Notes shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:


 


(1)                                  such Holder has previously given written
notice to the Trustee of a continuing Event of Default;


 


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(2)                                  the Holders of not less than 30% in principal
amount of the Outstanding Notes shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;


 


(3)                                  such Holder or Holders have offered to the
Trustee indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;


 


(4)                                  the Trustee for 30 days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceeding; and


 


(5)                                  no direction inconsistent with such written
request has been given to the Trustee during such 30-day period by the Holders
of a majority or more in principal amount of the Outstanding Notes;


 


it
being understood and intended that no one or more Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture or the Guarantees to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture or the
Guarantees, except in the manner herein provided and for the equal and ratable
benefit of all the Holders (it being further understood that the Trustee does
not have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders).


 


SECTION 508.  Unconditional Right of Holders to Receive Principal, Premium and
Interest.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment, as provided
herein (including, if applicable, Article Eleven) and in such Note of the
principal of (and premium, if any) and (subject to Section 307) interest
on such Note on the respective Stated Maturities expressed in such Note (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.


 


SECTION 509.  Restoration of Rights and Remedies.


 


If
the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture or the Guarantees and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, any Guarantor, any other obligor
of the Notes, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.


 


SECTION 510.  Rights and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in the last paragraph of Section 306, no
right or remedy


 


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herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


SECTION 511.  Delay or Omission Not Waiver.


 


No
delay or omission of the Trustee or of any Holder of any Note to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.


 


SECTION 512.  Control by Holders.


 


The
Holders of not less than a majority in principal amount of the Outstanding
Notes shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, provided that:


 


(1)                                  such direction shall not be in conflict with
any rule of law or with this Indenture,


 


(2)                                  subject to Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and


 


(3)                                  the Trustee need not take any action which
might involve it in personal liability or be unjustly prejudicial to the
Holders not consenting.


 


SECTION 513.  Waiver of Past Defaults.


 


Subject
to Sections 508 and 902 and the last paragraph of Section 502, the Holders
of not less than a majority in principal amount of the Outstanding Notes may on
behalf of the Holders of all such Notes waive any past Default hereunder and
its consequences, except a continuing Default or Event of Default (1) in
respect of the payment of interest on, premium, if any, or the principal of any
such Note held by a non-consenting Holder, or (2) in respect of a covenant or
provision hereof which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding Note affected.


 


Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture, but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon.


 


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SECTION 514.  Waiver of Stay or Extension Laws.


 


Each
of the Company, the Guarantors and any other obligor on the Notes covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and each of the Company, the Guarantors and any other obligor on the
Notes (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.


 


ARTICLE SIX


 


THE TRUSTEE


 


SECTION 601.  Duties of the Trustee.


 


(a)                                  Except during the continuance of a Default or
an Event of Default,


 


(1)                                  the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and


 


(2)                                  in the absence of bad faith or willful
misconduct on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions
specifically required by any provision hereof to be provided to it, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but not to verify the contents
thereof.


 


(b)                                 In case a Default or an Event of Default has
occurred and is continuing of which a Responsible Officer of the Trustee has
actual knowledge or of which written notice of such Default or Event of Default
shall have been given to the Trustee by the Company, any other obligor of the
Notes or by any Holder, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent Person would exercise or use under the
circumstances in the conduct of such Person’s own affairs.


 


(c)                                  No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that


 


(1)                                  this paragraph (c) shall not be construed to
limit the effect of paragraph (a) of this Section;


 


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(2)                                  the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;


 


(3)                                  the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in aggregate principal amount
of the Outstanding Notes relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture; and


 


(4)                                  no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.


 


(d)                                 Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.


 


SECTION 602.  Notice of Defaults.


 


Within
thirty days after the earlier of receipt from the Company of notice of the
occurrence of any Default or Event of Default hereunder or the date when such
Default or Event of Default becomes known to the Trustee, the Trustee shall
transmit, in the manner and to the extent provided in TIA Section 313(c),
notice of such Default or Event of Default hereunder known to the Trustee,
unless such Default or Event of Default shall have been cured or waived;
provided, however, that, except in the case of a Default or Event of Default in
the payment of the principal of (or premium, if any, on) or interest on any
Note, the Trustee shall be protected in withholding such notice if and so long
as a trust committee of Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Holders.


 


SECTION 603.  Certain Rights of Trustee.


 


Subject
to the provisions of TIA Sections 315(a) through 315(d):


 


(1)                                  the Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
party or parties;


 


(2)                                  any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;


 


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(3)                                  whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers’ Certificate;


 


(4)                                  the Trustee may consult with counsel of its
own selection and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;


 


(5)                                  the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or indemnity
satisfactory to it against the costs, expenses, losses and liabilities which
might be incurred by it in compliance with such request or direction;


 


(6)                                  the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the expense of the Company and shall incur no
liability of any kind by reason of such inquiry or investigation;


 


(7)                                  the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by
it hereunder;


 


(8)                                  the Trustee shall not be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;


 


(9)                                  the rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder; and


 


(10)                            the Trustee may request that the Company
deliver an Officers’ Certificate substantially in the Form of Exhibit G hereto
setting forth the names of individuals and/or titles of officers authorized at
such time to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.


 


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The
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


SECTION 604.  Trustee Not Responsible for Recitals or Issuance of Notes.


 


The
recitals contained herein and in the Notes, except for the Trustee’s
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Notes, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications
set forth therein.  The Trustee shall not
be accountable for the use or application by the Company of Notes or the
proceeds thereof.


 


SECTION 605.  May Hold Notes.


 


The
Trustee, any Paying Agent, any Note Registrar or any other agent of the Company
or of the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not the Trustee, Paying Agent, Note Registrar or such other agent; provided, however, that, if it acquires
any conflicting interest, it must eliminate such conflict within 90 days, apply
to the Commission for permission to continue or resign.


 


SECTION 606.  Money Held in Trust.


 


Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. 
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.


 


SECTION 607.  Compensation and Reimbursement.


 


The
Company agrees:


 


(1)                                  to pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);


 


(2)                                  except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as shall be determined to have been caused by its own
negligence or willful misconduct; and


 


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(3)                                  to indemnify the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all loss, liability,
claim, damage or expense, including taxes (other than the taxes based on the
income of the Trustee) incurred without negligence or willful misconduct on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any
claim regardless of whether the claim is asserted by the Company, a Guarantor,
a Holder or any other Person or liability in connection with the exercise or
performance of any of its powers or duties hereunder.


 


The
obligations of the Company under this Section to compensate the Trustee,
to pay or reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture and resignation or removal of the Trustee.  As security for the performance of such obligations of the
Company, the Trustee shall have a claim prior to the Notes upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any) or interest on particular
Notes.


 


When
the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 501(6), the expenses (including the
reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.


 


The
provisions of this Section shall survive the termination of this
Indenture.


 


SECTION 608.  Corporate Trustee Required; Eligibility.


 


There
shall be at all times a Trustee hereunder which shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000.  If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of Federal, State, territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published.  If at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.


 


SECTION 609.  Resignation and Removal; Appointment of Successor.


 


(a)                                  No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 610.


 


(b)                                 The Trustee may resign at any time by giving
written notice thereof to the Company. 
Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee by written instrument executed by authority of the
Board of Directors, a copy


 


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of
which shall be delivered to the resigning Trustee and a copy to the successor
trustee.  If the instrument of
acceptance by a successor Trustee required by Section 610 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Trustee.


 


(c)                                  The Trustee may be removed at any time by Act
of the Holders of not less than a majority in principal amount of the
Outstanding Notes, delivered to the Trustee and to the Company.  If the instrument of acceptance by a
successor Trustee required by Section 610 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.


 


(d)                                 If at any time:


 


(1)                                  the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Note for at least
six months, or


 


(2)                                  the Trustee shall cease to be eligible under
Section 608 and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Note for at least
six months, or


 


(3)                                  the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,


 


then,
in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a
bona fide Holder of a Note for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.


 


(e)                                  If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee.  If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Notes delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company.  If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Note for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.


 


(f)                                    The Company shall give notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee to the Holders in the manner provided


 


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for
in Section 106.  Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.


 


SECTION 610.  Acceptance of Appointment by Successor.


 


(a)                                  Every successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.  Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.


 


(b)                                 Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all rights, powers and
trusts referred to in paragraph (a) of this Section.


 


(c)                                  No successor Trustee shall accept its
appointment unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article.


 


SECTION 611.  Merger, Conversion, Consolidation or Succession to Business.


 


Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.  In case any Notes shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Notes.  In case at that time any of the
Notes shall not have been authenticated, any successor Trustee may authenticate
such Notes either in the name of any predecessor hereunder or in the name of
the successor Trustee.  In all such
cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee shall
have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Notes in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.


 


SECTION 612.  Appointment of Authenticating Agent.


 


At
any time when any of the Notes remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to the Notes which shall be
authorized to act on


 


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behalf
of the Trustee to authenticate Notes and the Trustee shall give written notice
of such appointment to all Holders of Notes with respect to which such
Authenticating Agent will serve, in the manner provided for in
Section 106.  Notes so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.  Any such appointment shall
be evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the
Company.  Wherever reference is made in
this Indenture to the authentication and delivery of Notes by the Trustee or
the Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. 
Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or state authority. 
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.  If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect specified in this
Section.


 


Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.


 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company.  The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company.  Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Notes, in the manner provided for in Section 106.
 Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. 
No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.


 


The
Company agrees to pay to each Authenticating Agent from time to time such
compensation for its services under this Section as shall be agreed in
writing between the Company and such Authenticating Agent.


 


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If
an appointment is made pursuant to this Section, the Notes may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an alternate
certificate of authentication in the following form:


 


This
is one of the Notes designated therein referred to in the within-mentioned
Indenture.


 


	
   

  	
  THE
  BANK OF NEW YORK TRUST

  COMPANY, N.A.

  
	
   

  	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as
  Authenticating Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as
  Authorized Officer

  	
   

  



 


ARTICLE SEVEN


 


HOLDERS LISTS AND REPORTS BY TRUSTEE AND
COMPANY


 


SECTION 701.  Company to Furnish Trustee Names and Addresses.


 


The
Company will furnish or cause to be furnished to the Trustee


 


(a)                                  semiannually, not more than 10 days after
each Regular Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular Record
Date; and


 


(b)                                 at such other times as the Trustee may
reasonably request in writing, within 30 days after receipt by the Company of
any such request, a list of similar form and content to that in paragraph (a)
hereof as of a date not more than 15 days prior to the time such list is
furnished;


 


provided, however, that if and so long as the Trustee shall be the Note Registrar, no
such list need be furnished.


 


SECTION 702.  Disclosure of Names and Addresses of Holders.


 


Every
Holder of Notes, by receiving and holding the same, agrees with the Company and
the Trustee that none of the Company or the Trustee or any agent of either of
them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312(b).


 


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SECTION 703.  Reports by Trustee.


 


Within
60 days after May 15 of each year commencing with the first May 15 after the
first issuance of Notes pursuant to this Indenture, the Trustee shall transmit
to the Holders of Notes (with a copy to the Company at the Place of Payment),
in the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such May 15 if required by TIA Section 313(a).


 


ARTICLE EIGHT


 


MERGER, CONSOLIDATION OR SALE OF ALL OR
SUBSTANTIALLY ALL ASSETS


 


SECTION 801.  Company May Consolidate, Etc., Only on Certain Terms.


 


The
Company may not consolidate or merge with or into or wind up into (whether or
not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to any Person unless:


 


(1)                                  the Company is the surviving corporation or
the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is a corporation organized
or existing under the laws of the United States, any state thereof, the
District of Columbia, or any territory thereof (such Person, as the case may
be, being herein called the “Successor
Company”);


 


(2)                                  the Successor Company, if other than the
Company, expressly assumes all the obligations of the Company under this
Indenture and the Notes pursuant to supplemental indentures or other documents
or instruments in form reasonably satisfactory to the Trustee;


 


(3)                                  immediately after such transaction no Default
or Event of Default exists;


 


(4)                                  immediately after giving pro forma effect to
such transaction, as if such transaction had occurred at the beginning of the
applicable four-quarter period,


 


(A)                              the Successor Company would be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 1011(a) or


 


(B)                                the Fixed Charge Coverage Ratio for the
Successor Company and the Restricted Subsidiaries would be greater than such
Ratio for the Company and the Restricted Subsidiaries immediately prior to such
transaction;


 


(5)                                  each Guarantor, unless it is the other party
to the transactions described above, in which case Section 802(2) below
shall apply, shall have by supplemental


 


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indenture
confirmed that its Guarantee shall apply to such Person’s obligations under
this Indenture and the Notes; and


 


(6)                                  the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indentures, if
any, comply with this Indenture.


 


The
Successor Company shall succeed to, and be substituted for the Company under
this Indenture and the Notes. Notwithstanding clauses (3) and (4) above,


 


(a)                                  any Restricted Subsidiary may consolidate
with, merge into or transfer all or part of its properties and assets to the
Company and


 


(b)                                 the Company may merge with an Affiliate
incorporated solely for the purpose of reincorporating the guarantor or the
Company in another State of the United States so long as the amount of
Indebtedness of the Company and the Restricted Subsidiaries is not increased
thereby.


 


SECTION 802.  Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms.


 


Subject
to Section 1015(b), each Subsidiary Guarantor shall not, and the Company
shall not permit any Subsidiary Guarantor to, consolidate or merge with or into
or wind up into (whether or not such Subsidiary Guarantor is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets in one or more related
transactions to, any Person unless:


 


(A)                              (1)  
such Subsidiary Guarantor is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than such
Subsidiary Guarantor) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is a corporation organized
or existing under the laws of the United States, any state thereof, the
District of Columbia, or any territory thereof (such Subsidiary Guarantor or
such Person, as the case may be, being herein called the “Successor Person”);


 


(2)                                  the Successor Person, if other than such
Subsidiary Guarantor, expressly assumes all the obligations of such Subsidiary
Guarantor under this Indenture and such Subsidiary Guarantor’s Guarantee
pursuant to supplemental indentures or other documents or instruments in form
reasonably satisfactory to the Trustee;


 


(3)                                  immediately after such transaction no Default
or Event of Default exists; and


 


(4)                                  the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indentures, if
any, comply with this Indenture; or


 


(B)                                the transaction is made in compliance with
Section 1018.


 


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Subject to Section 1015(b) hereof, the Successor Person shall
succeed to, and be substituted for, such Subsidiary Guarantor under this
Indenture and such Subsidiary Guarantor’s Guarantee.  Notwithstanding the foregoing, any Subsidiary Guarantor may merge
into or transfer all or part of its properties and assets to another Subsidiary
Guarantor or the Company.


 


SECTION 803.  Successor Substituted.


 


Upon
any consolidation or merger, or any sale, assignment, conveyance, transfer,
lease or disposition of all or substantially all of the assets of the Company
or any Guarantor in accordance with Sections 801 and 802 hereof, the successor
Person formed by such consolidation or into which the Company or such
Guarantor, as the case may be, is merged or the successor Person to which such
sale, assignment, conveyance, transfer, lease or disposition is made, shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor, as the case may be, under this Indenture and/or the
Guarantees, as the case may be, with the same effect as if such successor
Person had been named as the Company or such Guarantor, as the case may be,
herein and/or the Guarantees, as the case may be. When a successor Person
assumes all obligations of its predecessor hereunder, the Notes or the
Guarantees, as the case may be, such predecessor shall be released from all
obligations; provided  that in
the event of a transfer or lease, the predecessor shall not be released from
the payment of principal and interest or other obligations on the Notes or the
Guarantees, as the case may be.


 


ARTICLE NINE


 


SUPPLEMENTAL INDENTURES


 


SECTION 901.  Amendments or Supplements Without Consent of Holders.


 


Without
the consent of any Holders, the Company, any Guarantor (with respect to a
Guarantee or this Indenture to which it is a party), when authorized by Board
Resolutions of their respective Board of Directors, and the Trustee, at any
time and from time to time, may amend or supplement this Indenture, any
Guarantee or the Notes, in form satisfactory to the Trustee, for any of the
following purposes:


 


(1)                                  to cure any ambiguity, omission, defect or
inconsistency;


 


(2)                                  to provide for uncertificated Notes in
addition to or in place of certificated Notes;


 


(3)                                  to comply with Article Eight hereof;


 


(4)                                  to evidence the succession of another Person
to the Company or to any Guarantor and to provide the assumption of the
Company’s or such Guarantor’s obligations to Holders;


 


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(5)                                  to make any change that would provide any
additional rights or benefits to the Holders or that does not adversely affect
the legal rights under this Indenture of any such Holder;


 


(6)                                  to add covenants for the benefit of the
Holders or to surrender any right or power conferred in this Indenture upon the
Company;


 


(7)                                  to comply with requirements of the Commission
in order to effect or maintain the qualification of this Indenture under the
Trust Indenture Act;


 


(8)                                  to evidence and provide for the acceptance and
appointment under this Indenture of a successor Trustee pursuant to the
requirements of Sections 609 and 610;


 


(9)                                  to provide for the issuance of Exchange Notes
or private exchange notes, which are identical to Exchange Notes except that
they are not freely transferable;


 


(10)                            to add a Guarantor under this Indenture or to
release the Parent’s Guarantee; or


 


(11)                            to conform the text of this Indenture,
Guarantees or the Notes to any provision of the “Description of Notes”
section of the Offering Circular to the extent that such provision in the
“Description of Notes” was intended to be a verbatim recitation of a provision
of this Indenture, the Guarantees or the Notes.


 


SECTION 902.  Amendments, Supplements or Waivers with Consent of Holders.


 


With
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Notes, by Act of said Holders delivered to the Company and the
Trustee, the Company, any Guarantor (with respect to any Guarantee or this
Indenture to which it is a party), when authorized by Board Resolutions of
their respective Board of Directors, and the Trustee may amend or supplement
this Indenture, any Guarantee or the Notes for the purpose of adding any
provisions hereto or thereto, changing in any manner or eliminating any of the
provisions or of modifying in any manner the rights of the Holders hereunder or
thereunder (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or Exchange Offer for, the Notes) and any existing
Default, Event of Default or compliance with any provision of this Indenture or
the Notes may be waived with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Notes, other than Notes
beneficially owned by the Company or its Affiliates (including, without
limitation, consents obtained in connection with a purchase of or tender offer
or exchange offer for Notes); provided,
however, that no such amendment, supplement or waiver shall, without
the consent of the Holder of each Outstanding Note affected thereby:


 


(1)                                  reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver,


 


(2)                                  reduce the principal of or change the
Maturity of any such Note or alter or waive the provisions with respect to the
redemption of the Notes (other than Sections 1017 and 1018),


 


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(3)                                  reduce the rate of or change the time for
payment of interest on any Note,


 


(4)                                  waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on the Notes issued
under this Indenture, except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of such Notes and
a waiver of the Payment Default that resulted from such acceleration, or in
respect of a covenant or provision contained in this Indenture or any guarantee
which cannot be amended or modified without the consent of all Holders,


 


(5)                                  make any Note payable in money other than
that stated in such Notes,


 


(6)                                  make any change in Section 513 or the
rights of Holders to receive payments of principal of or premium, if any, or
interest on the Notes,


 


(7)                                  make any change in these amendment,
supplement and waiver provisions,


 


(8)                                  impair the right of any Holder to receive
payment of principal of, or interest on such Holder’s Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on or
with respect to such Holder’s Notes or


 


(9)                                  make any change in Article Fourteen of
this Indenture that would adversely affect the Holders.


 


SECTION 903.  Execution of Amendments, Supplements or Waivers.


 


In
executing, or accepting the additional trusts created by, any amendment,
supplement or waiver permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be provided
with, and shall be fully protected in relying upon, an Officers’ Certificate
and Opinion of Counsel stating that the execution of such amendment, supplement
or waiver is authorized or permitted by this Indenture.  The Trustee may, but shall not be obligated
to, enter into any such amendment, supplement or waiver which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


SECTION 904.  Effect of Amendments, Supplements or Waivers.


 


Upon
the execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such amendment, supplement or
waiver shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.


 


SECTION 905.  Conformity with Trust Indenture Act.


 


Every
supplemental indenture executed pursuant to the Article shall conform to
the requirements of the Trust Indenture Act as then in effect.


 


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SECTION 906.  Reference in Notes to Supplemental Indentures.


 


Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture.  If the Company
shall so determine, new Notes so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.


 


SECTION 907.  Notice of Supplemental Indentures.


 


Promptly
after the execution by the Company, any Guarantor and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Note
affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture.


 


ARTICLE TEN


 


COVENANTS


 


SECTION 1001.  Payment of Principal, Premium, if any, and Interest.


 


The
Company covenants and agrees for the benefit of the Holders that it will duly
and punctually pay the principal of (and premium, if any) and interest and
Special Interest, if any, on the Notes in accordance with the terms of the
Notes and this Indenture.


 


SECTION 1002.  Maintenance of Office or Agency.


 


The
Company will maintain in The City of New York, an office or agency where Notes
may be presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served.  The designated office of the Trustee shall
be such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes.  The Company will give prompt written notice
to the Trustee of any change in the location of any such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


 


The
Company may also from time to time designate one or more other offices or
agencies (in or outside of The City of New York) where the Notes may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in The
City of New York for such purposes.  The
Company will give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such other office or
agency.


 


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SECTION 1003.  Money for Notes Payments to Be Held in Trust.


 


If
the Company shall at any time act as its own Paying Agent, it will, on or
before each due date of the principal of (or premium, if any) or Special
Interest, if any, or interest on any of the Notes, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal of (or premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.


 


Whenever
the Company shall have one or more Paying Agents for the Notes, it will, on or
before each due date of the principal of (or premium, if any) or interest on
any Notes, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of such action or any failure so to act.


 


The
Company will cause each Paying Agent (other than the Trustee) to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:


 


(1)                                  hold all sums held by it for the payment of
the principal of (and premium, if any) or interest on Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;


 


(2)                                  give the Trustee notice of any default by the
Company (or any other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest; and


 


(3)                                  at any time during the continuance of any
such default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.


 


The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such sums.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any) or
interest on any Note and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as Trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, shall at
the expense of the


 


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Company
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.


 


SECTION 1004.  Corporate Existence.


 


Subject
to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect the corporate existence
and that of each Restricted Subsidiary and the corporate rights (charter and
statutory) and franchises of the Company and each Restricted Subsidiary; provided, however, that the Company shall
not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as a whole.


 


SECTION 1005.  Payment of Taxes and Other Claims.


 


The
Company will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (a) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary and (b) all lawful
claims for labor, materials and supplies, which, if unpaid, might by law become
a lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate reserves, if necessary (in the good faith judgment of management of
the Company) are being maintained in accordance with GAAP.


 


SECTION 1006.  Maintenance of Properties.


 


The
Company will cause all properties owned by the Company or any Restricted
Subsidiary or used or held for use in the conduct of its business or the
business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Restricted Subsidiary.


 


SECTION 1007.  Insurance.


 


The
Company will at all times keep all of its and its Subsidiaries properties which
are of an insurable nature insured with insurers, believed by the Company to be
responsible, against loss or damage to the extent that property of similar
character is usually so insured by corporations similarly situated and owning
like properties.


 


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SECTION 1008.  Statement by Officers as to Default.


 


(a)                                  The Company will deliver to the Trustee
within 120 days after the end of each fiscal year, an Officers’ Certificate
stating that a review of the activities of the Company and its Restricted
Subsidiaries during the preceding quarter or the preceding fiscal year, as the
case may be, has been made under the supervision of the signing officers with a
view to determining whether it has kept, observed, performed and fulfilled, and
has caused each of its Restricted Subsidiaries to keep, observe, perform and
fulfill its obligations under this Indenture and further stating, as to each
such officer signing such certificate, that, to the best of his or her
knowledge, the Company during such preceding quarter or the preceding fiscal year,
as the case may be, has kept, observed, performed and fulfilled, and has caused
each of its Restricted Subsidiaries to keep, observe, perform and fulfill each
and every such covenant contained in this Indenture and no Default or Event of
Default occurred during such quarter or year, as the case may be, and at the
date of such certificate there is no Default or Event of Default which has
occurred and is continuing or, if such signers do know of such Default or Event
of Default, the certificate shall describe its status, with particularity and
that, to the best of his or her knowledge, no event has occurred and remains by
reason of which payments on the account of the principal of or interest, if
any, on the Notes is prohibited or if such event has occurred, a description of
the event and what action each is taking or proposes to take with respect
thereto.  The Officers’ Certificate
shall also notify the Trustee should the Company elect to change the manner in
which it fixes its fiscal year-end.  For
purposes of this Section 1008(a), such compliance shall be determined
without regard to any period of grace or requirement of notice under this
Indenture.


 


(b)                                 (i) When any Default or Event of Default has
occurred and is continuing under this Indenture, or (ii) if the trustee for or
the holder of any other evidence of Indebtedness of the Company or any
Restricted Subsidiary gives any notice or takes any other action with respect
to a claimed default (other than with respect to Indebtedness in the principal
amount of less than $25,000,000), the Company shall deliver to the Trustee by
registered or certified mail or facsimile transmission an Officers’ Certificate
specifying such event, notice or other action within five Business Days of its
occurrence.


 


SECTION 1009.  Reports and Other Information.


 


(a)                                  The Company shall file with the Commission
(and make available to the Trustee and Holders (without exhibits), without cost
to each Holder, within 15 days after it files with the Commission):


 


(1)                                  within 90 days (or the successor time period
then in effect under the rules and regulations of the Exchange Act) after the
end of each fiscal year, annual reports on Form 10-K, or any successor or
comparable form, containing the information required to be contained therein, or
required in such successor or comparable form;


 


(2)                                  within 45 days (or the successor time period
then in effect under the rules and regulations of the Exchange Act) after the
end of each of the first three fiscal quarters of each fiscal year, reports on
Form 10-Q, containing the information required to be contained therein, or any
successor or comparable form;


 


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(3)                                  promptly from time to time after the
occurrence of an event required to be therein reported, such other reports on
Form 8-K, or any successor or comparable form; and


 


(4)                                  any other information, documents and other
reports which the Company would be required to file with the Commission if it
were subject to Section 13 or 15(d) of the Exchange Act;


 


provided that the Company shall not be so obligated to file such reports with
the Commission if the Commission does not permit such filing, in which event
the Company shall make available such information to prospective purchasers of
the Notes, in addition to providing such information to the Trustee and the
Holders in each case within 15 days after the time the Company would be
required to file such information with the Commission, if it were subject to
Sections 13 or 15(d) of the Exchange Act.


 


Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).


 


For
so long as the Parent is a Guarantor of the Notes, this Indenture will permit
the Company to satisfy its obligations under this Section 1009 with
respect to financial information relating to the Company by furnishing
financial information relating to the Parent; provided
that the same is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating
to the Parent, on the one hand, and the information relating to the Company and
the Restricted Subsidiaries on a standalone basis, on the other hand.


 


(b)                                 Notwithstanding the foregoing, such
requirements shall be deemed satisfied prior to the commencement of the
Exchange Offer or the effectiveness of the Shelf Registration statement by the
filing with the Commission of the Exchange Offer Registration Statement and/or
Shelf Registration Statement within the time periods specified in the
Registration Rights Agreement, and any amendments thereto, with such financial
information that satisfies Regulation S-X of the Securities Act.


 


SECTION 1010.  Limitation on Restricted Payments.


 


(a)                                  The Company shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly:


 


(1)                                  declare or pay any dividend or make any
distribution on account of the Company’s or any Restricted Subsidiary’s Equity
Interests, including any dividend or distribution payable in connection with
any merger or consolidation other than


 


(A)                              dividends or distributions by the Company
payable in Equity Interests (other than Disqualified Stock) of the Company or
in options, warrants or other rights to purchase such Equity Interests or


 


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(B)                                dividends or distributions by a Restricted
Subsidiary so long as, in the case of any dividend or distribution payable on
or in respect of any class or series of securities issued by a Subsidiary other
than a Wholly Owned Subsidiary, the Company or a Restricted Subsidiary receives
at least its pro rata share of such dividend or distribution in accordance with
its Equity Interests in such class or series of securities;


 


(2)                                  purchase, redeem, defease or otherwise
acquire or retire for value any Equity Interests of the Company or any direct
or indirect parent of the Company, including in connection with any merger or
consolidation;


 


(3)                                  make any principal payment on, or redeem,
repurchase, defease or otherwise acquire or retire for value in each case,
prior to any scheduled repayment, sinking fund payment or maturity, any
Subordinated Indebtedness, other than,


 


(x)                                   Indebtedness permitted under clauses (8) and
(9) of Section 1011(b), or


 


(y)                                 the purchase, repurchase or other acquisition
of Subordinated Indebtedness purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due
within one year of the date of purchase, repurchase or acquisition; or


 


(4)                                  make any Restricted Investment;


 


(all
such payments and other actions set forth in clauses (1) through (4) above
being collectively referred to as “Restricted
Payments”), unless, at the time of such Restricted Payment:


 


(A)                              no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof;


 


(B)                                immediately after giving effect to such
transaction on a pro forma basis, the Company could incur $1.00 of additional
Indebtedness under Section 1011(a); and


 


(C)                                such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the Issue Date (including Restricted Payments
permitted by clauses (1), (2) (with respect to the payment of dividends on
Refunding Capital Stock pursuant to clause (B) thereof only), (5), (6)(A) and
(C) and (9) of Section 1010(b), but excluding all other Restricted
Payments permitted by Section 1010(b)), is less than the sum of


 


(1)                                  50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period) from the beginning of
the first fiscal quarter commencing after the Issue Date, to the end of the
Company’s most recently ended fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment, or, in the case such
Consolidated Net Income for such period is a deficit, minus 100% of such
deficit, plus


 


88

















 


(2)                                  100% of the aggregate net cash proceeds and
the fair market value, as determined in good faith by the Board of Directors,
of marketable securities or other property received by the Company since
immediately after the Issue Date (other than net cash proceeds to the extent
such net cash proceeds have been used to incur Indebtedness, Disqualified Stock
or preferred stock pursuant to Section 1011(b)(14) from the issue or sale
of:


 


(x)                                   Equity Interests of the Company, including
Retired Capital Stock (as defined below), but excluding cash proceeds and the
fair market value, as determined in good faith by the Board of Directors, of
marketable securities or other property received from the sale of


 


(A)                              Equity Interests to members of management, directors or consultants of
the Company, any direct or indirect parent corporation of the Company and the
Company’s Subsidiaries after the Issue Date to the extent such amounts have
been applied to Restricted Payments made in accordance with
Section 1010(b)(4) and


 


(B)                                Designated Preferred Stock


 


and
to the extent actually contributed to the Company, Equity Interests of the
Company’s direct or indirect parent corporations (excluding contributions of
the proceeds from the sale of Designated Preferred Stock of such corporations)
or


 


(y)                                 debt securities of the Company that have been
converted into such Equity Interests of the Company;


 


provided, however, that this
clause (2) shall not include the proceeds from (a) Refunding Capital Stock (as
defined below), (b) Equity Interests or converted debt securities of the
Company sold to a Restricted Subsidiary or the Company, as the case may be, (c)
Disqualified Stock or debt securities that have been converted into
Disqualified Stock or (d) Excluded Contributions, plus


 


(3)                                  100% of the aggregate amount of cash and the
fair market value, as determined in good faith by the Board of Directors, of
marketable securities or other property contributed to the capital of the
Company following the Issue Date (other than net cash proceeds to the extent
such net cash proceeds have been used to incur Indebtedness, Disqualified Stock
or preferred stock pursuant to Section 1011(b)(14)) (other than by a
Restricted Subsidiary and other than by any Excluded Contributions), plus


 


(4)                                  100% of the aggregate amount received in cash
and the fair market value, as determined in good faith by the Board of
Directors, of marketable securities or other property received by means of


 


89

















 


(A)                              the sale or other disposition (other than to
the Company or a Restricted Subsidiary) of Restricted Investments made by the
Company and its Restricted Subsidiaries and repurchases and redemptions of such
Restricted Investments from the Company and its Restricted Subsidiaries and
repayments of loans or advances which constitute Restricted Investments by the
Company and its Restricted Subsidiaries or


 


(B)                                the sale (other than to the Company or a
Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a
distribution from an Unrestricted Subsidiary (other than in each case to the
extent the Investment in such Unrestricted Subsidiary was made by the Company
or a Restricted Subsidiary pursuant to clause (10) of Section 1010(b) or
to the extent such Investment constituted a Permitted Investment) or a dividend
from an Unrestricted Subsidiary plus


 


(5)                                  in the case of the redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of
the Investment in such Unrestricted Subsidiary, as determined by the Board of
Directors in good faith or if, in the case of an Unrestricted Subsidiary, such
fair market value may exceed $25.0 million, in writing by an independent
investment banking firm of nationally recognized standing, at the time of the
redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary, other
than an Unrestricted Subsidiary to the extent the Investment in such
Unrestricted Subsidiary was made by the Company or a Restricted Subsidiary
pursuant to clause (10) of Section 1010(b) or to the extent such Investment
constituted a Permitted Investment.


 


(b)                                 The foregoing provisions shall not prohibit:


 


(1)                                  the payment of any dividend within 60 days
after the date of declaration thereof, if at the date of declaration such
payment would have complied with the provisions of this Indenture;


 


(2)                                  (A) the redemption, repurchase, retirement or
other acquisition of any Equity Interests (“Retired
Capital Stock”) or Subordinated Indebtedness of the Company, or any
Equity Interests of any direct or indirect parent corporation of the Company,
in exchange for, or out of the proceeds of the substantially concurrent sale
(other than to a Restricted Subsidiary) of, Equity Interests of the Company (in
each case, other than any Disqualified Stock) (“Refunding Capital Stock”) and (B) if immediately prior to
the retirement of Retired Capital Stock, the declaration and payment of
dividends thereon was permitted under clause (6) of this Section 1010(b),
the declaration and payment of dividends on the Refunding Capital Stock (other
than Refunding Capital Stock the proceeds of which were used to redeem,
repurchase, retire or otherwise acquire any Equity Interests of any direct or
indirect parent corporation of the Company) in an aggregate amount per year no
greater than the aggregate amount of dividends per annum that was declarable
and payable on such Retired Capital Stock immediately prior to such retirement;


 


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(3)                                  the redemption, repurchase or other
acquisition or retirement of Subordinated Indebtedness of the Company made by
exchange for, or out of the proceeds of the substantially concurrent sale of,
new Indebtedness of the Company which is incurred in compliance with
Section 1011 so long as


 


(A)                              the principal amount of such new Indebtedness
does not exceed the principal amount of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired for value, plus the amount of any
reasonable premium required to be paid under the terms of the instrument
governing the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired,


 


(B)                                such Indebtedness is subordinated to Senior
Indebtedness and the Notes at least to the same extent as such Subordinated
Indebtedness so purchased, exchanged, redeemed, repurchased, acquired or
retired for value,


 


(C)                                such Indebtedness has a final scheduled
maturity date equal to or later than the final scheduled maturity date of the
Subordinated Indebtedness being so redeemed, repurchased, acquired or retired
and


 


(D)                               such Indebtedness has a Weighted Average Life
to Maturity equal to or greater than the remaining Weighted Average Life to
Maturity of the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired;


 


(4)                                  a Restricted Payment to pay for the
repurchase, retirement or other acquisition or retirement for value of common
Equity Interests of the Company or any of its direct or indirect parent
corporations held by any future, present or former employee, director or
consultant of the Company, any of its Subsidiaries or any of its direct or
indirect parent corporations pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement; provided, however,
that the aggregate Restricted Payments made under this clause (4) do not exceed
in any calendar year $10.0 million (with unused amounts in any calendar year
being carried over to succeeding calendar years subject to a maximum (without
giving effect to the following proviso) of $20.0 million in any calendar year);
provided further that such amount
in any calendar year may be increased by an amount not to exceed


 


(A)                              the cash proceeds from the sale of Equity
Interests of the Company and, to the extent contributed to the Company, Equity
Interests of any of the Company’s direct or indirect parent corporations, in
each case to members of management, directors or consultants of the Company,
any of its Subsidiaries or any of its direct or indirect parent corporations
that occurs after the Issue Date, to the extent the cash proceeds from the sale
of such Equity Interests have not otherwise been applied to the payment of
Restricted Payments by virtue of Section 1010(a)(C), plus


 


(B)                                the cash proceeds of key man life insurance
policies received by the Company and its Restricted Subsidiaries after the
Issue Date less


 


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(C)                                the amount of any Restricted Payments
previously made pursuant to clauses (A) and (B) of this Section 1010(b);


 


and
provided further that
cancellation of Indebtedness owing to the Company from members of management of
the Company, any of its direct or indirect parent corporations or any
Restricted Subsidiary in connection with a repurchase of Equity Interests of
the Company or any of its direct or indirect parent corporations will not be
deemed to constitute a Restricted Payment for purposes of this covenant or any
other provision of this Indenture;


 


(5)                                  the declaration and payment of dividends to
holders of any class or series of Disqualified Stock of the Company or any
other Restricted Subsidiary issued in accordance with the covenant described
under Section 1011 to the extent such dividends are included in the
definition of Fixed Charges;


 


(6)                                  (A) the declaration and payment of dividends
to holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) issued by the Company after the Issue Date;


 


(B)                                the declaration and payment of dividends to a
direct or indirect parent corporation of the Company, the proceeds of which
will be used to fund the payment of dividends to holders of any class or series
of Designated Preferred Stock (other than Disqualified Stock) of such parent
corporation issued after the Issue Date, provided
that the amount of dividends paid pursuant to this clause (B) shall
not exceed the aggregate amount of cash actually contributed to the Company
from the sale of such Designated Preferred Stock; or


 


(C)                                the declaration and payment of dividends on
Refunding Capital Stock in excess of the dividends declarable and payable
thereon pursuant to clause (2) of this Section 1010(b);


 


provided, however, in the case of
each of (A), (B) and (C) of this clause (6), that for the most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date of issuance of such Designated Preferred Stock
or the declaration of such dividends on Refunding Capital Stock, after giving
effect to such issuance or declaration on a pro forma basis, the Company and
the Restricted Subsidiaries would have had a Fixed Charge Coverage Ratio of at
least 2.00 to 1.00;


 


(7)                                  Investments in Unrestricted Subsidiaries
having an aggregate fair market value, taken together with all other
Investments made pursuant to this clause (7) that are at the time outstanding,
without giving effect to the sale of an Unrestricted Subsidiary to the extent
the proceeds of such sale do not consist of cash and/or marketable securities,
not to exceed $25.0 million at the time of such Investment (with the fair
market value of each Investment being measured at the time made and without
giving effect to subsequent changes in value);


 


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(8)                                  repurchases of Equity Interests deemed to
occur upon exercise of stock options or warrants if such Equity Interests
represent a portion of the exercise price of such options or warrants;


 


(9)                                  the payment of dividends on the Company’s
Common Stock, following the first public offering of the Company’s Common Stock
or the Common Stock of any of its direct or indirect parent corporations after
the Issue Date, of up to 6% per annum of the net proceeds received by or
contributed to the Company in such public offering, other than public offerings
with respect to the Company’s Common Stock registered on Form S-8 and other
than any public sale constituting an Excluded Contribution;


 


(10)                            Investments that are made with Excluded
Contributions;


 


(11)                            other Restricted Payments in an aggregate
amount not to exceed $30.0 million;


 


(12)                            the declaration and payment of dividends by
the Company to, or the making of loans to, its direct parent in amounts
required for either of their respective direct or indirect parent corporations
to pay


 


(A)                              franchise taxes and other fees, taxes and
expenses required to maintain their corporate existence,


 


(B)                                federal, state and local income taxes, to the
extent such income taxes are attributable to the income of the Company and the
Restricted Subsidiaries and, to the extent of the amount actually received from
its Unrestricted Subsidiaries, in amounts required to pay such taxes to the
extent attributable to the income of such Unrestricted Subsidiaries,


 


(C)                                customary salary, bonus and other benefits
payable to officers and employees of any direct or indirect parent corporation
of the Company to the extent such salaries, bonuses and other benefits are
attributable to the ownership or operation of the Company and the Restricted
Subsidiaries, and


 


(D)                               general corporate overhead expenses of any
direct or indirect parent corporation of the Company to the extent such
expenses are attributable to the ownership or operation of the Company and the
Restricted Subsidiaries;


 


(13)                            distributions or payments of Receivables
Fees;


 


(14)                            cash dividends or other distributions on the
Company’s or any Restricted Subsidiary’s Capital Stock used to fund the
Transactions and the fees and expenses related thereto or owed to Affiliates,
in each case to the extent permitted by Section 1013; and


 


(15)                            the repurchase, redemption or other
acquisition or retirement for value of any Subordinated Indebtedness pursuant
to the provisions similar to those described under Sections 1017 and 1018
hereof; provided that all senior
subordinated notes tendered by holders of the senior subordinated notes in
connection with a Change of


 


93

















 


Control
Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or
acquired for value;


 


provided however, that at the time of, and after giving effect to, any Restricted
Payment permitted under clauses (5), (6), and (11) of this
Section 1010(b), no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof.


 


(c)                                  As of the time of issuance of the Notes, all
of the Company’s Subsidiaries shall be Restricted Subsidiaries. The Company
shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary
except pursuant to the last sentence of the definition of “Unrestricted
Subsidiary” in Section 101 of this Indenture.  For purposes of designating any Restricted Subsidiary as an
Unrestricted Subsidiary, all outstanding Investments by the Company and its
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated shall be deemed to be Restricted Payments in an amount determined as
set forth in the last sentence of the definition of “Investment.” Such
designation will be permitted only if a Restricted Payment in such amount would
be permitted at such time, whether pursuant to Section 1010(a) or under clauses
(7), (10) or (11) of Section 1010(b), or pursuant to the definition of
“Permitted Investments,” and if such Subsidiary otherwise meets the definition
of an Unrestricted Subsidiary. Unrestricted Subsidiaries shall not be subject
to any of the restrictive covenants set forth in this Indenture.


 


SECTION 1011.  Limitation on Incurrence of Indebtedness and Issuance of  Disqualified Stock.


 


(a)                                  The Company shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, (collectively, “incur” and collectively, an “incurrence”) with
respect to any Indebtedness (including Acquired Indebtedness) and the Company
shall not issue any shares of Disqualified Stock and shall not permit any
Restricted Subsidiary to issue any shares of Disqualified Stock or preferred
stock; provided, however, that the Company may incur
Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified
Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired
Indebtedness), issue shares of Disqualified Stock and issue shares of preferred
stock, if the Fixed Charge Coverage Ratio for the Company’s and the Restricted
Subsidiaries’ most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock or preferred
stock is issued would have been at least 2.00 to 1.00, determined on a pro
forma basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred, or the Disqualified Stock
or preferred stock had been issued, as the case may be, and the application of
proceeds therefrom had occurred at the beginning of such four-quarter period; provided that the amount of Indebtedness
(other than Acquired Indebtedness), Disqualified Stock and preferred stock that
may be incurred pursuant to the foregoing by Restricted Subsidiaries that are
not Guarantors of the Notes shall not exceed $35.0 million at any one time
outstanding.


 


(b)                                 The foregoing limitations shall not apply to:


 


(1)                                  the incurrence of Indebtedness under Credit
Facilities (other than the Senior Unsecured Term Loan) by the Company or any of
the Restricted Subsidiaries and the


 


94

















 


issuance
and creation of letters of credit and bankers’ acceptances thereunder (with
letters of credit and bankers’ acceptances being deemed to have a principal
amount equal to the face amount thereof), up to an aggregate principal amount
of $805.0 million outstanding at any one time; provided,
however, that the aggregate
amount of Indebtedness incurred by Restricted Subsidiaries (other than
Guarantors) pursuant to this clause (1) and clause (2) below may not exceed
$150.0 million outstanding at any one time;


 


(2)                                  the incurrence of the Senior Unsecured Term
Loan, up to an aggregate principal amount of $100.0 million outstanding at any
one time, by the Company or, subject to the proviso in clause (1) above, any of
the Restricted Subsidiaries;


 


(3)                                  the incurrence by the Company and any
Guarantor of Indebtedness represented by the Notes (including any Guarantee);


 


(4)                                  Existing Indebtedness (other than
Indebtedness described in clauses (1), 
(2) and (3) above);


 


(5)                                  Indebtedness (including Capitalized Lease
Obligations), Disqualified Stock and preferred stock incurred by the Company or
any of its Restricted Subsidiaries, to finance the purchase, lease or
improvement of property (real or personal) or equipment that is used or useful
in a Similar Business, whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets, in an aggregate principal
amount which, when aggregated with the principal amount of all other
Indebtedness, Disqualified Stock and preferred stock then outstanding and
incurred pursuant to this clause (5) and including all Refinancing Indebtedness
incurred to refund, refinance or replace any other Indebtedness, Disqualified
Stock and preferred stock incurred pursuant to this clause (5), does not exceed
the greater of (x) $75.0 million and (y) 7.5% of Total Assets.


 


(6)                                  Indebtedness incurred by the Company or any
Restricted Subsidiary constituting reimbursement obligations with respect to
letters of credit issued in the ordinary course of business, including without
limitation letters of credit in respect of workers’ compensation claims, or
other Indebtedness with respect to reimbursement type obligations regarding
workers’ compensation claims; provided,
however, that upon the drawing of such letters of credit or the
incurrence of such Indebtedness, such obligations are reimbursed within 30 days
following such drawing or incurrence;


 


(7)                                  Indebtedness arising from agreements of the
Company or a Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary, other
than guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or a Subsidiary for the purpose of financing
such acquisition; provided, however, that


 


(A)                              such Indebtedness is not reflected on the
balance sheet of the Company or any Restricted Subsidiary (contingent
obligations referred to in a footnote to financial statements and not otherwise
reflected on the balance sheet


 


95

















 


shall
not be deemed to be reflected on such balance sheet for purposes of this clause
(7)(A)) and


 


(B)                                the maximum assumable liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds including
non-cash proceeds (the fair market value of such non-cash proceeds being
measured at the time received and without giving effect to any subsequent
changes in value) actually received by the Company and the Restricted
Subsidiaries in connection with such disposition;


 


(8)                                  Indebtedness of the Company to a Restricted
Subsidiary; provided that any
such Indebtedness owing to a non-Guarantor is subordinated in right of payment
to the Notes; provided further that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except to
the Company or another Restricted Subsidiary) shall be deemed, in each case to
be an incurrence of such Indebtedness;


 


(9)                                  Indebtedness of a Restricted Subsidiary to
the Company or another Restricted Subsidiary; provided
that:


 


(A)                              any such Indebtedness is made pursuant to an
intercompany note and


 


(B)                                if a Guarantor incurs such Indebtedness to a
Restricted Subsidiary that is not the Company or a Guarantor such Indebtedness
is subordinated in right of payment to the Guarantee of such Guarantor; provided further that any subsequent
transfer of any such Indebtedness (except to the Company or another Restricted
Subsidiary) shall be deemed, in each case to be an incurrence of such
Indebtedness;


 


(10)                            shares of preferred stock of a Restricted
Subsidiary issued to the Company or another Restricted Subsidiary; provided that any subsequent issuance or
transfer of any Capital Stock or any other event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such shares of preferred stock (except to the
Company or another Restricted Subsidiary) shall be deemed in each case to be an
issuance of such shares of preferred stock;


 


(11)                            Hedging Obligations (excluding Hedging
Obligations entered into for speculative purposes) for the purpose of limiting:


 


(A)                              interest rate risk with respect to any
Permitted Indebtedness; or


 


(B)                                exchange rate risk with respect to any
currency exchange; or


 


(C)                                commodity risk;


 


96

















 


(12)                            obligations in respect of performance, bid,
appeal and surety bonds and completion guarantees provided by the Company or
any Restricted Subsidiary in the ordinary course of business;


 


(13)                            Indebtedness of any Guarantor in respect of
such Guarantor’s Guarantee;


 


(14)                            Indebtedness, Disqualified Stock and
preferred stock of the Company or any Restricted Subsidiary not otherwise
permitted hereunder in an aggregate principal amount or liquidation preference,
which when aggregated with the principal amount and liquidation preference of
all other Indebtedness, Disqualified Stock and preferred stock then outstanding
and incurred pursuant to this clause (14), does not at any one time outstanding
exceed the sum of:


 


(x)                                   $125.0 million; and


 


(y)                                 100% of the net cash proceeds received by the
Company since immediately after the Issue Date from the issue or sale of Equity
Interests of the Company or cash contributed to the capital of the Company (in
each case other than proceeds of Disqualified Stock or sales of Equity
Interests to the Company or any of its Subsidiaries) as determined in
accordance with clauses (C)(2) and (C)(3) of Section 1010(a) to the extent
such net cash proceeds or cash have not been applied pursuant to such clauses
to make Restricted Payments or to make other investments, payments or exchanges
pursuant to Section 1010(b) or to make Permitted Investments (other than
Permitted Investments specified in clauses (a) and (c) of the definition
thereof),


 


provided further, however, that the
aggregate amount of Indebtedness, Disqualified Stock and preferred stock
incurred by Restricted Subsidiaries (other than Guarantors) pursuant to this
clause (14) may not exceed $50.0 million outstanding at any one time (it being
understood that any Indebtedness, Disqualified Stock or preferred stock
incurred pursuant to this clause (14) shall cease to be deemed incurred or
outstanding for purposes of this clause (14) but shall be deemed incurred for
the purposes of Section 1011(a) from and after the first date on which the
Company or such Restricted Subsidiary could have incurred such Indebtedness,
Disqualified Stock or preferred stock under Section 1011(a) without
reliance on this clause (14);


 


(15)                            (A)                              any guarantee by the Company or a Guarantor
of Indebtedness or other obligations of any Restricted Subsidiary so long as
the incurrence of such Indebtedness incurred by such Restricted Subsidiary is
permitted under the terms of this Indenture, or


 


(B)                                any guarantee by a Restricted Subsidiary of
Indebtedness of the Company, provided
that such guarantee is incurred in accordance with Section 1015;


 


(16)                            the incurrence by the Company or any
Restricted Subsidiary of Indebtedness, Disqualified Stock or preferred stock
which serves to refund or refinance any Indebtedness, Disqualified Stock or
preferred stock incurred as permitted under Section 1011 (a) and clauses
(3) and (4) above, this clause (16) and clause (17) below or any Indebtedness,
Disqualified Stock or preferred stock issued to so refund or refinance such 


 


97

















 


Indebtedness,
Disqualified Stock or preferred stock including additional Indebtedness,
Disqualified Stock or preferred stock incurred to pay premiums and fees in
connection therewith (the “Refinancing
Indebtedness”) prior to its respective maturity; provided, however,
that such Refinancing Indebtedness


 


(A)                              has a Weighted Average Life to Maturity at
the time such Refinancing Indebtedness is incurred which is not less than the
remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified
Stock or preferred stock being refunded or refinanced,


 


(B)                                to the extent such Refinancing Indebtedness
refinances (i) Indebtedness subordinated or pari
passu to the Notes or any Guarantee of the Notes, such Refinancing
Indebtedness is subordinated or pari passu
to the Notes or such Guarantee at least to the same extent as the Indebtedness
being refinanced or refunded or (ii) Disqualified Stock or preferred stock,
such Refinancing Indebtedness must be Disqualified Stock or preferred stock,
respectively and


 


(C)                                shall not include (x) Indebtedness,
Disqualified Stock or preferred stock of a Subsidiary that refinances
Indebtedness, Disqualified Stock or preferred stock of the Company, (y)
Indebtedness, Disqualified Stock or preferred stock of a Subsidiary that is not
a Guarantor that refinances Indebtedness, Disqualified Stock or preferred stock
of a Guarantor or (z) Indebtedness, Disqualified Stock or preferred stock of
the Company or a Restricted Subsidiary that refinances Indebtedness,
Disqualified Stock or preferred stock of an Unrestricted Subsidiary;


 


and provided further that
subclause (A) above of this clause (16) shall not apply to any refunding or
refinancing of any Senior Indebtedness;


 


(17)                            Indebtedness, Disqualified Stock or preferred
stock of Persons that are acquired by the Company or any Restricted Subsidiary
or merged into the Company or a Restricted Subsidiary in accordance with the
terms of this Indenture; provided
that such Indebtedness, Disqualified Stock or preferred stock is not incurred
in contemplation of such acquisition or merger; and provided further that after giving effect to such
acquisition or merger, either


 


(A)                              the Company would be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 1011(a), or


 


(B)                                the Fixed Charge Coverage Ratio is greater
than immediately prior to such acquisition or merger.


 


(18)                            Indebtedness arising from the honoring by a
bank or other financial  institution of
a check, draft or similar instrument drawn against insufficient funds in the
ordinary course of business, provided
that such Indebtedness is extinguished within two Business Days of its
incurrence;


 


98

















 


(19)                            Indebtedness of the Company or any Restricted
Subsidiary supported by a letter of credit issued pursuant to the Senior Credit
Facilities, in a principal amount not in excess of the stated amount of such
letter of credit; and


 


(20)                            Indebtedness of the Company or any Restricted
Subsidiary consisting of (i) the financing of insurance premiums or (ii)
take-or-pay obligations contained in supply arrangements, in each case, in the
ordinary course of business.


 


(c)                                  For purposes of determining compliance with
this Section 1011, in the event that an item of Indebtedness, Disqualified
Stock or Preferred Stock meets the criteria of more than one of the categories
of permitted Indebtedness, Disqualified Stock or Preferred Stock described in
clauses (1) through (20) of this Section 1011(b) or is entitled to be
incurred pursuant to Section 1011(a), the Company shall, in its sole
discretion, classify or reclassify such item of Indebtedness in any manner that
complies with this Section 1011 and such item of Indebtedness,
Disqualified Stock or Preferred Stock shall be treated as having been incurred
pursuant to only one of such clauses of this Section 1011(b) or pursuant
to Section 1011(a) except as otherwise set forth in clause (14) of this
Section 1011(b). Accrual of interest, the accretion of accreted value and
the payment of interest in the form of additional Indebtedness, Disqualified
Stock or Preferred Stock shall not be deemed to be an incurrence of
Indebtedness, Disqualified Stock or Preferred Stock for purposes of this
Section 1011.


 


(d)                                 For purposes of determining compliance with
any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the
U.S. dollar-equivalent principal amount of Indebtedness denominated in a
foreign currency shall be calculated based on the relevant currency exchange
rate in effect on the date such Indebtedness was incurred, in the case of term
debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is
incurred to refinance other Indebtedness denominated in a foreign currency, and
such refinancing would cause the applicable U.S. dollar denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect
on the date of such refinancing, such U.S. dollar-denominated restriction shall
be deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such
Indebtedness being refinanced.


 


(e)                                  The principal amount of any Indebtedness
incurred to refinance other Indebtedness, if incurred in a different currency
from the Indebtedness being refinanced, shall be calculated based on the
currency exchange rate applicable to the currencies in which such respective
Indebtedness is denominated that is in effect on the date of such refinancing.


 


SECTION 1012.  Limitation on
Liens.


 


The
Company shall not, and shall not permit any Subsidiary Guarantor to, directly
or indirectly, create, incur, assume or suffer to exist any Lien (except
Permitted Liens) that secures obligations under any Senior Subordinated
Indebtedness or Subordinated Indebtedness on any asset or property of the
Company or such Subsidiary Guarantor, or any income or profits therefrom, or
assign or convey any right to receive income therefrom, unless the Notes (or a
Guarantee in the case of Liens of a Subsidiary Guarantor) are equally and
ratably secured with, or


 


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senior
to, in the event the Lien relates to Subordinated Indebtedness, the obligations
so secured until such time as such obligations are no longer secured by a Lien.


 


SECTION 1013.  Limitations on Transactions with Affiliates.


 


(a)                                  The Company shall not, and shall not permit
any Restricted Subsidiary to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”) involving
aggregate payments or consideration in excess of $5.0 million, unless


 


(1)                                  such Affiliate Transaction is on terms that
are not materially less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person and


 


(2)                                  the Company delivers to the Trustee with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate payments or consideration in excess of $10.0
million, a resolution adopted by the majority of the Board of Directors
approving such Affiliate Transaction and set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with clause (1) above.


 


(b)                                 The foregoing provisions will not apply to
the following:


 


(1)                                  transactions between or among the Company
and/or any of the Restricted Subsidiaries;


 


(2)                                  Restricted Payments permitted by
Section 1010 and the definition of “Permitted  Investment”;


 


(3)                                  the payment of management, consulting,
monitoring and advisory fees and related expenses to Kohlberg Kravis Roberts
& Co. L.P. and its Affiliates;


 


(4)                                  the payment of reasonable and customary fees
paid to, and indemnities provided on behalf of, officers, directors, employees
or consultants of the Company, any of its direct or indirect parent
corporations or any Restricted Subsidiary;


 


(5)                                  payments by the Company or any Restricted
Subsidiary to Kohlberg Kravis Roberts & Co. L.P., and its Affiliates made
for any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures which payments are approved by
a majority of the Board of Directors of the Company in good faith;


 


(6)                                  transactions in which the Company or any
Restricted Subsidiary, as the case may be, delivers to the Trustee a letter
from an Independent Financial Advisor stating that


 


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such
transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view or meets the requirements of Section 1013(a)(1);


 


(7)                                  payments or loans (or cancellation of loans)
to employees or consultants of the Company, any of its direct or indirect
parent corporations or any Restricted Subsidiary which are approved by a
majority of the Board of Directors of the Company in good faith;


 


(8)                                  any agreement as in effect as of the Issue
Date, or any amendment thereto (so long as any such amendment is not
disadvantageous to the holders in any material respect);


 


(9)                                  the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of its obligations under the
terms of, any stockholders agreement (including any registration rights
agreement or purchase agreement related thereto) to which it is a party as of
the Issue Date and any similar agreements which it may enter into thereafter; provided, however,
that the existence of, or the performance by the Company or any Restricted
Subsidiary of obligations under any future amendment to any such existing
agreement or under any similar agreement entered into after the Issue Date
shall only be permitted by this clause (9) to the extent that the terms of any
such amendment or new agreement are not otherwise disadvantageous to the
Holders in any material respect;


 


(10)                            the Transactions and the payment of all fees
and expenses related to the Transactions, in each case as disclosed in the
Offering Circular;


 


(11)                            transactions with customers, clients,
suppliers, or purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with the terms of this
Indenture which are fair to the Company and the Restricted Subsidiaries, in the
reasonable determination of the Board of Directors of the Company or the senior
management thereof, or are on terms at least as favorable as might reasonably
have been obtained at such time from an unaffiliated party;


 


(12)                            the issuance of Equity Interests (other than
Disqualified Stock) of the Company to any Permitted Holder or to any director,
officer, employee or consultant; and


 


(13)                            sales of accounts receivable, or
participations therein, in connection with any Receivables Facility.


 


SECTION 1014.  Limitations on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.


 


The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or consensual restriction on the ability of any such
Restricted Subsidiary to:


 


(a)                                   (1) pay dividends or make any other
distributions to the Company or any Restricted Subsidiary on its Capital Stock
or, with respect to any other interest or participation in, or measured by, its
profits, or (2) pay any Indebtedness owed to the Company or any Restricted
Subsidiary;


 


101

















 


(b)                                 make loans or advances to the Company or any
Restricted Subsidiary; or


 


(c)                                  sell, lease or transfer any of its properties
or assets to the Company or any Restricted Subsidiary,


 


except
(in each case) for such encumbrances or restrictions existing under or by
reason of:


 


(1)                                  contractual encumbrances or restrictions in
effect on the Issue Date, including, without limitation, pursuant to the Senior
Credit Facilities, the Senior Unsecured Term Loan and their related
documentation;


 


(2)                                  this Indenture and the Notes;


 


(3)                                  purchase money obligations for property
acquired in the ordinary course of business that impose restrictions of the
nature discussed in clause (c) above on the property so acquired;


 


(4)                                  applicable law or any applicable rule,
regulation or order;


 


(5)                                  any agreement or other instrument of a Person
acquired by the Company or any Restricted Subsidiary in existence at the time
of such acquisition (but not created in contemplation thereof), which
encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person, or the property or assets of
the Person, so acquired;


 


(6)                                  contracts for the sale of assets, including,
without limitation, customary restrictions with respect to a Subsidiary
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Subsidiary;


 


(7)                                  secured Indebtedness otherwise permitted to
be incurred pursuant to Sections 1011 and 1012 that limit the right of the
debtor to dispose of the assets securing such Indebtedness;


 


(8)                                  restrictions on cash or other deposits or net
worth imposed by customers under contracts entered into in the ordinary course
of business;


 


(9)                                  other Indebtedness, Disqualified Stock or
preferred stock of Restricted Subsidiaries permitted to be incurred subsequent
to the Issue Date pursuant to Section 1011;


 


(10)                            customary provisions in joint venture
agreements and other similar agreements;


 


(11)                            customary provisions contained in leases and
other agreements entered into in the ordinary course of business;


 


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(12)                            any encumbrances or restrictions of the type
referred to in clauses (a), (b) and (c) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (1) through (11) above, provided that such
amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Board of
Directors of the Company no more restrictive with respect to such encumbrance
and other restrictions than those prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or
refinancing; and


 


(13)                            restrictions created in connection with any
Receivables Facility that, in the good faith determination of the Board of
Directors of the Company, are necessary or advisable to effect such Receivables
Facility.


 


SECTION 1015.  Limitation on Guarantees of Indebtedness by Restricted Subsidiaries.


 


(a)                                  The Company shall not permit any Restricted
Subsidiary that is a Domestic Subsidiary, other than a Guarantor or a
special-purpose Restricted Subsidiary formed in connection with Receivables
Facilities, to guarantee the payment of any Indebtedness of the Company or any
other Guarantor unless:


 


(1)                                  such Restricted Subsidiary simultaneously
executes and delivers supplemental indentures to this Indenture providing for a
guarantee of payment of the Notes by such Restricted Subsidiary, except that
with respect to a guarantee of Indebtedness of the Company or any Guarantor:


 


(A)                              if the Notes or such Guarantor’s Guarantee of
the Notes are subordinated in right of payment to such Indebtedness, the
Guarantee under the supplemental indentures shall be subordinated to such
Restricted Subsidiary’s guarantee with respect to such Indebtedness
substantially to the same extent as the Notes are subordinated to such
Indebtedness under this Indenture and


 


(B)                                if such Indebtedness is by its express terms
subordinated in right of payment to the Notes or such Guarantor’s Guarantee of
the Notes, any such guarantee of such Restricted Subsidiary with respect to
such Indebtedness shall be subordinated in right of payment to such Restricted
Subsidiary’s Guarantee with respect to the Notes substantially to the same
extent as such Indebtedness is subordinated to the Notes;


 


(2)                                  such Restricted Subsidiary waives and shall
not in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights against
the Company or any other Restricted Subsidiary as a result of any payment by
such Restricted Subsidiary under its guarantee; and


 


(3)                                  such Restricted Subsidiary shall deliver to
the Trustee an Opinion of Counsel to the effect that


 


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(A)                              such Guarantee of the Notes has been duly
executed and authorized, and


 


(B)                                such Guarantee of the Notes constitutes a
valid, binding and enforceable obligation of such Restricted Subsidiary, except
insofar as enforcement thereof may be limited by bankruptcy, insolvency or
similar laws (including, without limitation, all laws relating to fraudulent
transfers) and except insofar as enforcement thereof is subject to general
principles of equity;


 


provided that this Section 1015(a) shall not be applicable to any
guarantee of any Restricted Subsidiary that


 


(x)                                   existed at the time such Person became a
Restricted Subsidiary and was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary.


 


(y)                                 guarantees the payment of Obligations of the
Company or any Restricted Subsidiary under the Senior Credit Facilities, the
Senior Unsecured Term Loan or any other Senior Indebtedness and any refunding,
refinancing or replacement thereof, in whole or in part, provided that such refunding, refinancing
or replacement thereof constitutes Senior Indebtedness and provided further that any such Senior
Indebtedness and any refunding, refinancing or replacement thereof is not
incurred pursuant to a registered offering of securities under the Securities
Act or a private placement of securities (including under Rule 144A) pursuant
to an exemption from the registration requirements of the Securities Act, which
private placement provides for registration rights under the Securities Act.


 


(b)                                 Notwithstanding the foregoing and the other
provisions of this Indenture, any Guarantee by a Restricted Subsidiary of the
Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon


 


(1)                                  any sale, exchange or transfer (by merger or
otherwise) of all of the Company’s Capital Stock in such Guarantor (including
any sale, exchange or transfer following which the applicable Guarantor is no
longer a Restricted Subsidiary) or all or substantially all the assets of such
Guarantor, which sale, exchange or transfer is made in compliance with the
applicable provisions of this Indenture,


 


(2)                                  the release or discharge of the guarantee by
such Restricted Subsidiary which resulted in the creation of such Guarantee,
except a discharge or release by or as a result of payment under such
guarantee, or


 


(3)                                  if the Company properly designates any
Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary.


 


(c)                                  Notwithstanding any other provisions of this
Indenture, the Parent may be released from all of its obligations under its
Guarantee and shall cease to be a Guarantor for all purposes under this
Indenture, including without limitation Article Twelve, at the option of
the Company and the Parent at any time following the Issue Date.


 


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SECTION 1016.  Limitation on Other Senior Subordinated Indebtedness.


 


The
Company shall not, and shall not permit any Subsidiary Guarantor to, directly
or indirectly, incur any Indebtedness (including Acquired Indebtedness) that is
subordinate in right of payment to any Indebtedness of the Company or any
Subsidiary Guarantor, as the case may be, unless such Indebtedness is either


 


(a)                                  equal in right of payment with the Notes or
such Subsidiary Guarantor’s Guarantee, as the case may be, or


 


(b)                                 subordinate in right of payment to the Notes
or such Subsidiary Guarantor’s Guarantee, as the case may be.


 


No
such Indebtedness shall be considered to be senior by virtue of being secured
on a first or junior priority basis.


 


SECTION 1017.  Change of Control.


 


(a)                                  If a Change of Control occurs, the Company
shall make an offer to purchase all of the Notes pursuant to the offer
described below (the “Change of Control
Offer”) at a price in cash (the “Change
of Control Payment”) equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Special Interest, if any, to the
date of purchase, subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date.
Within 30 days following any Change of Control, the Company shall send notice
of such Change of Control Offer by first class mail, with a copy to the
Trustee, to each Holder to the address of such Holder appearing in the Note
Register with a copy to the Trustee, with the following information:


 


(1)                                  a Change of Control Offer is being made
pursuant to this Section 1017 and that all Notes properly tendered
pursuant to such Change of Control Offer will be accepted for payment;


 


(2)                                  the purchase price and the purchase date,
which will be no earlier than 30 days nor later than 60 days from the date such
notice is mailed (the “Change of Control
Payment Date”);


 


(3)                                  any Note not properly tendered will remain
outstanding and continue to accrue interest;


 


(4)                                  unless the Company defaults in the payment of
the Change of Control Payment, all Notes accepted for payment pursuant to the
Change of Control Offer will cease to accrue interest on the Change of Control
Payment Date;


 


(5)                                  Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to surrender the Notes,
with the form entitled “Option of Holder to Elect Purchase” on the reverse of
the Notes completed, to the Paying Agent specified in the notice at the address
specified in the notice prior to the close of business on the third business
day preceding the Change of Control Payment Date;


 


105

















 


(6)                                  Holders will be entitled to withdraw their
tendered Notes and their election to require the Company to purchase such
Notes, provided that the Paying
Agent receives, not later than the close of business on the last day of the
Offer Period, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder of the Notes, the principal amount of Notes tendered for
purchase, and a statement that such Holder is withdrawing his tendered Notes
and his election to have such Notes purchased; and


 


(7)                                  that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof.


 


(b)                                 While the Notes are in global form and the
Company makes an offer to purchase all of the Notes pursuant to the Change of
Control Offer, a Holder may exercise its option to elect for the purchase of
the Notes through the facilities of Depositary, Euroclear and Clearstream
Banking, subject to their rules and regulations.


 


(c)                                  Prior to complying with the provisions of
this Section 1017, but in any event within 30 days following a Change of
Control, the Company shall either repay all its outstanding Senior Indebtedness
that prohibits it from repurchasing Notes in a Change of Control Offer or obtain
the requisite consents, if any, under any outstanding Senior Indebtedness in
each case necessary to permit the repurchase of the Notes required by this
Section 1017, provided that
the failure to repay such Indebtedness or obtain such consent shall not affect
the obligation to make a Change of Control Offer.


 


(d)                                 The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to a Change
of Control Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Indenture, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations described in this Indenture by virtue
thereof.


 


(e)                                  On the Change of Control Payment Date, the
Company shall, to the extent permitted by law,


 


(1)                                  accept for payment all Notes or portions
thereof properly tendered pursuant to the Change of Control Offer,


 


(2)                                  deposit with the Paying Agent an amount equal
to the aggregate Change of Control Payment in respect of all Notes or portions
thereof so tendered and


 


(3)                                  deliver, or cause to be delivered, to the
Trustee for cancellation the Notes so accepted together with an Officers’
Certificate stating that such Notes or portions thereof have been tendered to
and purchased by the Company.


 


(f)                                    The Paying Agent shall promptly mail to each
Holder the Change of Control Payment for such Notes, and the Trustee will
promptly authenticate and mail to each


 


106

















 


Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any, provided,
that each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.


 


SECTION 1018.  Asset Sales.


 


(a)                                  The Company shall not, and shall not permit
any Restricted Subsidiary to, cause, make or suffer to exist an Asset Sale,
unless:


 


(1)                                  the Company or such Restricted Subsidiary, as
the case may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value (as determined in good faith by the Company) of
the assets sold or otherwise disposed of and


 


(2)                                  except in the case of a Permitted Asset Swap,
at least 75% of the consideration therefor received by the Company or such
Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents; provided that the
amount of


 


(A)                              any liabilities (as shown on the Company’s,
or such Restricted Subsidiary’s, most recent balance sheet or in the Notes
thereto) of the Company or any Restricted Subsidiary, other than liabilities
that are by their terms subordinated to the Notes, that are assumed by the
transferee of any such assets and for which the Company and all Restricted
Subsidiaries have been validly released by all creditors in writing,


 


(B)                                any securities received by the Company or
such Restricted Subsidiary from such transferee that are converted by the
Company or such Restricted Subsidiary into cash (to the extent of the cash
received) within 180 days following the closing of such Asset Sale and


 


(C)                                any Designated Non-cash Consideration
received by the Company or any Restricted Subsidiary in such Asset Sale having
an aggregate fair market value, taken together with all other Designated
Non-cash Consideration received pursuant to this clause (C) that is at that
time outstanding, not to exceed the greater of (x) $100.0 million and (y) 10.0%
of Total Assets at the time of the receipt of such Designated Non-cash Consideration,
with the fair market value of each item of Designated Non-cash Consideration
being measured at the time received and without giving effect to subsequent
changes in value,


 


shall
be deemed to be cash for purposes of this provision and for no other purpose.


 


(b)                                 Within 365 days after the Company’s or any
Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the
Company or such Restricted Subsidiary, at its option, may apply the Net
Proceeds from such Asset Sale


 


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(1)                                  to permanently reduce:


 


(A)                              Obligations under the Senior Credit
Facilities or the Senior Unsecured Term Loan, and to correspondingly reduce
commitments with respect thereto,


 


(B)                                Obligations under other Senior Indebtedness
(and to correspondingly reduce commitments with respect thereto) or Senior
Subordinated Indebtedness provided that
if the Company shall so reduce Obligations under Senior Subordinated
Indebtedness, it shall equally and ratably reduce Obligations under the Notes
if the Notes are then prepayable or, if the Notes may not then be prepaid, the
Company shall make an offer (in accordance with the procedures set forth below
for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the
principal amount thereof, plus the amount of accrued but unpaid interest, if
any, on the amount of Notes that would otherwise be prepaid, or


 


(C)                                Indebtedness of a Restricted Subsidiary which
is not a Guarantor, other than Indebtedness owed to the Company or another
Restricted Subsidiary,


 


(2)                                  to an investment in (a) any one or more
businesses, provided that such
investment in any business is in the form of the acquisition of Capital Stock
and results in the Company or a Restricted Subsidiary, as the case may be, owning
an amount of the Capital Stock of such business such that it constitutes a
Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other
assets, in each of (a), (b) and (c), used or useful in a Similar Business,
and/or


 


(3)                                  to an investment in (a) any one or more
businesses, provided that such
investment in any business is in the form of the acquisition of Capital Stock
and results in the Company or a Restricted Subsidiary, as the case may be,
owning an amount of the Capital Stock of such business such that it constitutes
a Restricted Subsidiary, (b) properties or (c) other assets that, in each of
(a), (b) and (c) replace the businesses, properties and assets that are the
subject of such Asset Sale.


 


(c)                                  Any Net Proceeds from the Asset Sale that are
not invested or applied as provided and within the time period set forth in
Section 1018(a) shall be deemed to constitute “Excess Proceeds.” When the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall
make an offer to all Holders of the Notes, and, if required by the terms of any
Pari Passu Indebtedness, to the
holders of such Pari Passu Indebtedness, (an “Asset
Sale Offer”), to purchase the maximum principal amount of Notes and
such Pari Passu Indebtedness, that is an integral multiple of $1,000 that may
be purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof, plus accrued and unpaid interest
and Special Interest, if any, to the date fixed for the closing of such offer,
in accordance with the procedures set forth in this Indenture. The Company
shall commence an Asset Sale Offer with respect to Excess Proceeds within ten
Business Days after the date that Excess Proceeds exceeds $15.0 million by
mailing the notice required pursuant to the terms of this Indenture, with a
copy to the Trustee. To the extent that the aggregate amount of Notes and such
Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes, subject to other covenants contained in this
Indenture. If the aggregate principal amount of Notes or the Pari Passu


 


108

















 


Indebtedness
surrendered by such holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such Pari Passu Indebtedness to be purchased
on a pro rata basis based on the accreted value or principal amount of the
Notes or such Pari Passu Indebtedness tendered. Upon completion of any such
Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.


 


(d)                                 Pending the final application of any Net
Proceeds pursuant to this Section 1018, the Company or the applicable
Restricted Subsidiary may apply such Net Proceeds temporarily to reduce
Indebtedness outstanding under a revolving credit facility or otherwise invest
such Net Proceeds in any manner not prohibited by this Indenture.


 


(e)                                  The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to an Asset
Sale Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Indenture, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations described in this Indenture by virtue
thereof.


 


(f)                                    If less than all of the Notes or such Pari
Passu Indebtedness are to be redeemed at any time, selection of such Notes for
redemption, will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which such Notes are
listed, or, if such Notes are not so listed, on a pro rata basis; provided that no Notes of $1,000 or less
shall be purchased or redeemed in part.


 


(g)                                 Notices of purchase or redemption shall be
mailed by first class mail, postage prepaid, at least 30 but not more than 60
days before the purchase or redemption date to each Holder to be purchased or
redeemed at such Holder’s registered address. If any Note is to be purchased or
redeemed in part only, any notice of purchase or redemption that relates to
such Note shall state the portion of the principal amount thereof that has been
or is to be purchased or redeemed.


 


(h)                                 A new Note in principal amount equal to the
unpurchased or unredeemed portion of any Note purchased or redeemed in part
shall be issued in the name of the Holder thereof upon cancellation of the
original Note. On and after the purchase or redemption date, unless the Company
defaults in payment of the purchase or Redemption Price, interest shall cease to
accrue on Notes or portions thereof purchased or called for redemption.


 


SECTION 1019.  Waiver of Certain Covenants.


 


The
Company and the Restricted Subsidiaries may omit in any particular instance to
comply with any term, provision or condition set forth in or Sections 1004
through 1008, inclusive, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Notes, by
Act of such Holders, waive such compliance in such instance with such term, provision
or condition, but no such waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived, and, until such waiver


 


109

















 


shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.


 


SECTION 1020.  Special Interest Notice.


 


In
the event that the Company is required to pay Special Interest to Holders of
Notes pursuant to the Registration Rights Agreement, the Company will provide
written notice (“Special Interest Notice”)
to the Trustee of its obligation to pay Special Interest no later than fifteen
days prior to the proposed payment date for the Special Interest, and the
Special Interest Notice shall set forth the amount of Special Interest to be
paid by the Company on such payment date. The Trustee shall not at any time be
under any duty or responsibility to any Holder of Notes to determine the Special
Interest, or with respect to the nature, extent, or calculation of the amount
of Special Interest owed, or with respect to the method employed in such
calculation of the Special Interest.


 


ARTICLE ELEVEN


 


REDEMPTION OF NOTES


 


SECTION 1101.  Right of Redemption.


 


Except
as set forth below, the Notes are not redeemable at the Company’s option until
June 15, 2009. From and after June 15, 2009, the Company may redeem
the Notes, in whole or in part, upon not less than 30 nor more than 60 days’
prior notice by first class mail, postage prepaid, with a copy to the Trustee,
to each Holder of Notes to the address of such Holder appearing in the Note
Register at the Redemption Prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon and Special
Interest, if any, to the applicable Redemption Date, subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant Interest Payment Date, if redeemed during the twelve-month period
beginning on  June 15 of each of
the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2009

  	
   

  	
  104.125

  	
  %

  
	
  2010

  	
   

  	
  102.750

  	
  %

  
	
  2011

  	
   

  	
  101.375

  	
  %

  
	
  2012
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In
addition to the optional redemption of the Notes in accordance with the provisions
of the preceding paragraph, at any time prior to June 15, 2007, the
Company may, at its option, redeem up to 40% of the aggregate principal amount
of Notes issued under this Indenture at a redemption price equal to 108.250% of
the aggregate principal amount thereof, plus accrued and unpaid interest
thereon and Special Interest, if any, to the Redemption Date, subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest


 


110

















 


payment
date, with the net proceeds of one or more Equity Offerings of the Company or
any direct or indirect parent of the Company to the extent such net proceeds
are contributed to the Company; provided that
at least 60% of the sum of the aggregate principal amount of Notes remains
outstanding immediately after the occurrence of each such redemption; provided further that each such redemption
occurs within 90 days of the date of closing of each such Equity Offering.


 


At
any time prior to June 15, 2009, the Company may also redeem all or a part
of the Notes, upon not less than 30 nor more than 60 days’ prior notice mailed
by first-class mail to each Holder’s registered address, at a redemption price
equal to 100% of the principal amount of Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest and Special Interest, if any, to
the Redemption Date, subject to the rights of Holders on the relevant record
date to receive interest due on the relevant interest payment date.


 


SECTION 1102.  Applicability of Article.


 


Redemption
of Notes at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.


 


SECTION 1103.  Election to Redeem; Notice to Trustee.


 


The
election of the Company to redeem any Notes pursuant to Section 1101 above
shall be evidenced by a Board Resolution. 
In case of any redemption at the election of the Company, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Notes to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Notes to be redeemed pursuant to
Section 1104.


 


SECTION 1104.  Selection by Trustee of Notes to Be Redeemed.


 


If
less than all of the notes or such Pari Passu Indebtedness are to be redeemed
at any time, selection of such Notes for redemption, will be made by the
Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Notes are listed, or, if such Notes
are not so listed, on a pro rata basis; provided that no notes of $1,000 or
less shall be purchased or redeemed in part.


 


Notices
of purchase or redemption shall be mailed by first class mail, postage prepaid,
at least 30 but not more than 60 days before the purchase or redemption date to
each Holder of Notes to be purchased or redeemed at such Holder’s registered
address. If any Note is to be purchased or redeemed in part only, any notice of
purchase or redemption that relates to such Note shall state the portion of the
principal amount thereof that has been or is to be purchased or redeemed.


 


A
new Note in principal amount equal to the unpurchased or unredeemed portion of
any Note purchased or redeemed in part will be issued in the name of the Holder
thereof upon cancellation of the original note. On and after the purchase or
Redemption Date, unless the


 


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Company
defaults in payment of the purchase or Redemption Price, interest shall cease
to accrue on notes or portions thereof purchased or called for redemption.


 


SECTION 1105.  Notice of Redemption.


 


Notice
of redemption shall be given in the manner provided for in Section 106 not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
to be redeemed.


 


All
notices of redemption shall state:


 


(1)                                  the Redemption Date,


 


(2)                                  the Redemption Price and the amount of
accrued interest to the Redemption Date payable as provided in
Section 1107, if any,


 


(3)                                  if less than all Outstanding Notes are to be
redeemed, the identification (and, in the case of a partial redemption, the
principal amounts) of the particular Notes to be redeemed,


 


(4)                                  in case any Note is to be redeemed in part
only, the notice which relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the holder will receive, without
charge, a new Note or Notes of authorized denominations for the principal
amount thereof remaining unredeemed,


 


(5)                                  that on the Redemption Date the Redemption
Price (and accrued interest, if any, to the Redemption Date payable as provided
in Section 1107) will become due and payable upon each such Note, or the
portion thereof, to be redeemed, and that interest thereon will cease to accrue
on and after said date,


 


(6)                                  the place or places where such Notes are to
be surrendered for payment of the Redemption Price and accrued interest, if
any,


 


(7)                                  the name and address of the Paying Agent,


 


(8)                                  that Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price,


 


(9)                                  the CUSIP number, and that no representation
is made as to the accuracy or correctness of the CUSIP number, if any, listed
in such notice or printed on the Notes, and


 


(10)                            the paragraph of the Notes pursuant to which
the Notes are to be redeemed.


 


Notice
of redemption of Notes to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company.


 


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SECTION 1106.  Deposit of Redemption Price.


 


Prior
to any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and accrued interest and Special
Interest, if any, on, all the Notes which are to be redeemed on that date.


 


SECTION 1107.  Notes Payable on Redemption Date.


 


Notice
of redemption having been given as aforesaid, the Notes so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified (together with accrued interest and Special Interest, if any,
to the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such Notes
shall cease to bear interest.  Upon
surrender of any such Note for redemption in accordance with said notice, such
Note shall be paid by the Company at the Redemption Price, together with
accrued interest and Special Interest, if any, to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.


 


If
any Note called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate borne by the Notes.


 


SECTION 1108.  Notes Redeemed in Part.


 


Any
Note which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at the office or agency of the Company maintained
for such purpose pursuant to Section 1002 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Note so
surrendered.


 


ARTICLE TWELVE


 


GUARANTEES


 


SECTION 1201.  Guarantees.


 


Each
Guarantor hereby jointly and severally, unconditionally and irrevocably
guarantees the Notes and obligations of the Company hereunder and thereunder,
and guarantees to each Holder of a Note authenticated and delivered by the
Trustee, and to the Trustee on behalf


 


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of
such Holder, that:  (a) the principal of
(and premium, if any) and interest on, or Special Interest in respect of, the
Notes will be paid in full when due, whether at Stated Maturity, by
acceleration or otherwise (including, without limitation, the amount that would
become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Law), together with interest on the
overdue principal, if any, and interest on any overdue interest, to the extent
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be paid in full or performed, all in accordance
with the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or of any such other obligations, the same
shall be paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise,
subject, however, in the case of clauses (a) and (b) above, to the limitation
set forth in Section 1205 hereof.


 


Each
Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or thereof, any release of
any other Guarantor, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor.


 


Each
Guarantor hereby waives (to the extent permitted by law) the benefits of
diligence, presentment, demand for payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or any other Person, protest, notice and
all demands whatsoever and covenants that the Guarantee of such Guarantor shall
not be discharged as to any Note except by complete performance of the
obligations contained in such Note, this Indenture and such Guarantee.  Each Guarantor acknowledges that the
Guarantee is a guarantee of payment and not of collection.  Each of the Guarantors hereby agrees that,
in the event of a default in payment of principal (or premium, if any) or
interest on such Note, whether at its Stated Maturity, by acceleration,
purchase or otherwise, legal proceedings may be instituted by the Trustee on
behalf of, or by, the Holder of such Note, subject to the terms and conditions
set forth in this Indenture, directly against each of the Guarantors to enforce
such Guarantor’s Guarantee without first proceeding against the Company or any
other Guarantor.  Each Guarantor agrees
that if, after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the Maturity of the Notes, to
collect interest on the Notes, or to enforce or exercise any other right or
remedy with respect to the Notes, such Guarantor shall pay to the Trustee for
the account of the Holder, upon demand therefor, the amount that would
otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of the Holders.


 


If
any Holder or the Trustee is required by any court or otherwise to return to
the Company or any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to either the Company or any Guarantor, any
amount paid by any of them to the Trustee or such Holder, the Guarantee of each
of the Guarantors, to the extent theretofore discharged, shall be reinstated in
full force and effect.  Each Guarantor
further agrees that, as between each Guarantor, on the one hand, and the
Holders and the Trustee on the other hand, (x) subject to this
Article Twelve, the Maturity of the obligations guaranteed hereby may be
accelerated as


 


114

















 


provided
in Article Five hereof for the purposes of the Guarantee of such Guarantor
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligation as provided in Article Five
hereof, such obligations (whether or not due and payable) shall forthwith
become due and payable by each Guarantor for the purpose of the Guarantee of
such Guarantor.


 


Each
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation,
reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all
or any significant part of the Company’s assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the Notes are, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored
or returned by any obligee on the Notes, whether as a “voidable preference”,
“fraudulent transfer” or otherwise, all as though such payment or performance
had not been made.  In the event that
any payment or any part thereof, is rescinded, reduced, restored or returned,
the Notes shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned. The form of Notation of Guarantee to be executed on each Note by
each Guarantor is attached as Exhibit E hereto


 


SECTION 1202.  Severability.


 


In
case any provision of any Guarantee shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.


 


SECTION 1203.  Restricted Subsidiaries.


 


The
Company shall cause any Restricted Subsidiary required to guarantee payment of
the Notes pursuant to the terms and provisions of Section 1015 to (i)
execute and deliver to the Trustee any amendment or supplement to this
Indenture in accordance with the provisions of Article Nine of this
Indenture pursuant to which such Restricted Subsidiary shall guarantee all of
the obligations on the Notes, whether for principal, premium, if any, interest
(including interest accruing after the filing of, or which would have accrued
but for the filing of, a petition by or against the Company under Bankruptcy
Law, whether or not such interest is allowed as a claim after such filing in
any proceeding under such law) and other amounts due in connection therewith
(including any fees, expenses and indemnities), on an unsecured senior
subordinated basis and (ii) deliver to such Trustee an Opinion of Counsel
reasonably satisfactory to such Trustee to the effect that such amendment or
supplement has been duly executed and delivered by such Restricted Subsidiary
and is in compliance with the terms of this Indenture.  Upon the execution of any such amendment or
supplement, the obligations of the Guarantors and any such Restricted
Subsidiary under their respective Guarantees shall become joint and several and
each reference to the “Guarantor” in this Indenture shall, subject to
Section 1208, be deemed to refer to all Guarantors, including such
Restricted Subsidiary.  Such Guarantee
shall be released in accordance with Section 803 and Section 1015(b).


 


115

















 


SECTION 1204.  Subordination of Guarantees.


 


The
Guarantee issued by any Guarantor shall be unsecured senior subordinated
obligations of such Guarantor, ranking pari
passu with all other existing and future senior subordinated
indebtedness of such Guarantor, if any. 
The Indebtedness evidenced by such Guarantee shall be subordinated on
the same basis to Senior Indebtedness of such Guarantor as the Notes are
subordinated to Senior Indebtedness under Article Fourteen.


 


SECTION 1205.  Limitation of Guarantors’ Liability.


 


Each
Guarantor and by its acceptance hereof each Holder confirms that it is the
intention of all such parties that the guarantee by each such Guarantor
pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law or the
provisions of its local law relating to fraudulent transfer or conveyance.  To effectuate the foregoing intention, the
Holders and each such Guarantor hereby irrevocably agree that the obligations
of such Guarantor under its Guarantee shall be limited to the maximum amount
that will not, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to this
Section 1205, result in the obligations of such Guarantor under its
Guarantee constituting such fraudulent transfer or conveyance.


 


SECTION 1206.  Contribution.


 


In
order to provide for just and equitable contribution among the Guarantors, the
Guarantors agree, inter  se, that in the event any payment or
distribution is made by any Guarantor (a “Funding Guarantor”) under a
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro  rata amount based on the Adjusted Net
Assets (as defined below) of each Guarantor (including the Funding Guarantor)
for all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Company’s obligations with respect to the Notes or any other
Guarantor’s obligations with respect to the Guarantee of such Guarantor.  “Adjusted Net Assets” of such Guarantor at
any date shall mean the lesser of (x) the amount by which the fair value of the
property of such Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Guarantee of such Guarantor at such date and (y) the
amount by which the present fair salable value of the assets of such Guarantor
at such date exceeds the amount that will be required to pay the probable
liability of such Guarantor on its debts (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date), excluding
debt in respect of the Guarantee of such Guarantor, as they become absolute and
matured.


 


SECTION 1207.  Subrogation.


 


Each
Guarantor shall be subrogated to all rights of Holders against the Company in
respect of any amounts paid by any Guarantor pursuant to the provisions of
Section 1201; provided, however, that, if an Event of
Default has occurred and is continuing, no Guarantor


 


116

















 


shall
be entitled to enforce or receive any payments arising out of, or based upon,
such right of subrogation until all amounts then due and payable by the Company
under this Indenture or the Notes shall have been paid in full.


 


SECTION 1208.  Reinstatement.


 


Each
Guarantor hereby agrees (and each Person who becomes a Guarantor shall agree)
that the Guarantee provided for in Section 1201 shall continue to be
effective or be reinstated, as the case may be, if at any time, payment, or any
part thereof, of any obligations or interest thereon is rescinded or must
otherwise be restored by a Holder to the Company upon the bankruptcy or
insolvency of the Company or any Guarantor.


 


SECTION 1209.  Release of a Guarantor.


 


Concurrently
with the discharge of the Notes under Section 401, the Legal Defeasance of
the Notes under Section 1302 hereof, or the Covenant Defeasance of the
Notes under Section 1303 hereof, the Guarantors shall be released from all
their obligations under their Guarantees under this Article Twelve.  Any Guarantor shall be released from all its
obligations under its Guarantee in accordance with Section 803 and
Section 1015(b).


 


SECTION 1210.  Benefits Acknowledged.


 


Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and from its
guarantee and waivers pursuant to its Guarantees under this
Article Twelve.


 


ARTICLE THIRTEEN


 


DEFEASANCE AND COVENANT DEFEASANCE


 


SECTION 1301.  Company’s Option to Effect Legal Defeasance or Covenant Defeasance.


 


The
Company may, at its option by Board Resolution, at any time, with respect to
the Notes, elect to have either Section 1302 or Section 1303 be
applied to all Outstanding Notes upon compliance with the conditions set forth
below in this Article Thirteen.


 


SECTION 1302.  Legal Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 1301 of the option applicable to this
Section 1302, each of the Company and the Guarantors shall be deemed to
have been discharged from its respective obligations with respect to all
Outstanding Notes on the date the conditions set forth in Section 1304 are
satisfied (hereinafter, “Legal Defeasance”). 
For this purpose, such Legal Defeasance means that each of the Company
and the Guarantors shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Notes, which shall thereafter be
deemed to be “Outstanding” only for the purposes of Section 1305 and the
other Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other


 


117

















 


obligations
under such Notes and this Indenture insofar as such Notes are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: 
(A) the rights of Holders of Outstanding Notes to receive payments in
respect of the principal of (and premium, if any, on) and interest on such
Notes when such payments are due, solely out of the trust described in
Section 1304, (B) the Company’s obligations with respect to such Notes
under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, and the obligations of each of
the Company and the Guarantors in connection therewith and (D) this
Article Thirteen.  Subject to
compliance with this Article Thirteen, the Company may exercise its option
under this Section 1302 notwithstanding the prior exercise of its option
under Section 1303 with respect to the Notes.


 


SECTION 1303.  Covenant Defeasance.


 


 Upon the Company’s exercise under
Section 1301 of the option applicable to this Section 1303, each of
the Company and the Guarantors shall be released from its respective
obligations under any covenant contained in Sections 801, 802 and in Sections
1005, 1006, 1007, 1009 through 1018 with respect to the Outstanding Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
“Covenant Defeasance”), and the Notes shall thereafter be deemed not to be
“Outstanding” for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “Outstanding” for all other purposes
hereunder.  For this purpose, such
Covenant Defeasance means that, with respect to the Outstanding Notes, the
Company or any Guarantor, as applicable, may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such omission
to comply shall not constitute a Default or an Event of Default under Sections
501(3), 501(4), 501(5) and 501(7) and, with respect to only any Significant
Subsidiary and not the Company, Section 501(6), but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.


 


SECTION 1304.  Conditions to Legal Defeasance or Covenant Defeasance.


 


The
following shall be the conditions to application of either Section 1302 or
Section 1303 to the Outstanding Notes:


 


(1)                                  The Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the provisions
of this Article Thirteen applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for,
and dedicated solely to the benefit of the Holders of such Notes; (A) cash in
U.S. dollars, or (B) non-callable Government Securities, or (C) a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any) and interest


 


118

















 


on
the Outstanding Notes on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any or, interest due on the
Notes; provided that the Trustee shall have been irrevocably instructed
to apply such cash or the proceeds of such Government Securities to said
payments with respect to the Notes; and provided  further that
upon the effectiveness of this Section 1304, the cash or Government
Securities deposited shall not be subject to the rights of the holders of
Senior Indebtedness pursuant to the provisions of Article Fourteen.  Before such a deposit, the Company may give
to the Trustee, in accordance with Section 1103 hereof, a notice of its
election to redeem all of the Outstanding Notes at a future date in accordance
with Article Eleven hereof, which notice shall be irrevocable.  Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing;


 


(2)                                  in the case of Legal Defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that, subject to customary
assumptions and exclusions,


 


(A)                              the Company has received from, or there has
been published by, the United States Internal Revenue Service a ruling, or


 


(B)                                since the issuance of the Notes, there has
been a change in the applicable U.S. Federal income tax law,


 


in
either case to the effect that, and based thereon such Opinion of Counsel in
the United States shall confirm that, subject to customary assumptions and
exclusions, the Holders of the Outstanding Notes will not recognize income,
gain or loss for U.S. Federal income tax purposes as a result of such Legal
Defeasance and will be subject to U.S. Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Legal Defeasance had not occurred;


 


(3)                                  in the case of Covenant Defeasance, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders of the Outstanding Notes will
not recognize income, gain or loss for U.S. Federal income tax purposes as a
result of such Covenant Defeasance and will be subject to such tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred;


 


(4)                                  no Default or Event of Default (other than
that resulting from borrowing funds to be applied to make such deposit) shall
have occurred and be continuing on the date of such deposit;


 


(5)                                  such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default under the
Senior Credit Facilities, the Senior Unsecured Term Loan or any other material
agreement or instrument (other than this Indenture) to which, the Company or
any Guarantor is a party or by which the Company or any Guarantor is bound;


 


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(6)                                  the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that, as of the date of such opinion
and subject to customary assumptions and exclusions following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally under any applicable U.S. Federal or state law, and that the Trustee
has a perfected security interest in such trust funds for the ratable benefit
of the Holders of the Outstanding Notes;


 


(7)                                  the Company shall have delivered to the
Trustee an Officers’ Certificate stating that the deposit was not made by the
Company with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or any Guarantor or others; and


 


(8)                                  the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel in the United States
(which Opinion of Counsel may be subject to customary assumptions and
exclusions) each stating that all conditions precedent provided for or relating
to the Legal Defeasance or the Covenant Defeasance, as the case may be, have
been complied with.


 


SECTION 1305.  Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.


 


Subject
to the provisions of the last paragraph of Section 1003, all cash and
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this
Section 1305, the “Trustee”) pursuant to Section 1304 in respect of
the Outstanding Notes shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money or Government Securities need not be
segregated from other funds except to the extent required by law.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the Government Securities deposited
pursuant to Section 1304 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Notes.


 


Anything
in this Article Thirteen to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Securities held by it as provided in Section 1304
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance, as
applicable, in accordance with this Article.


 


120

















 


SECTION 1306.  Reinstatement.


 


If
the Trustee or any Paying Agent is unable to apply any money or Government
Securities in accordance with Section 1305 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s and each Guarantor’s
obligations under this Indenture and the Outstanding Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 1302 or
1303, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money or Government Securities in accordance with
Section 1305; provided, however,
that if the Company makes any payment of principal of (or premium, if any) or
interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.


 


ARTICLE FOURTEEN


 


SUBORDINATION OF NOTES


 


SECTION 1401.  Agreement to Subordinate.


 


The
Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to the
extent and in the manner provided in this Article 14, to the prior payment
in full of all Senior Indebtedness of the Company (whether outstanding on the
date hereof or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Indebtedness.


 


SECTION 1402.  Liquidation;
Dissolution; Bankruptcy.


 


Upon
any distribution to creditors of the Company in a liquidation or dissolution of
the Company, in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property, in an assignment
for the benefit of creditors or in any marshaling of the Company’s assets and
liabilities:


 


(1)                                  holders of Senior Indebtedness shall be
entitled to receive payment in full in cash or Cash Equivalents of all
Obligations due in respect of Senior Indebtedness of the Company (including
interest after the commencement of any bankruptcy proceeding at the rate
specified in the documentation governing the applicable Senior Indebtedness of
the Company whether or not such interest is an allowed claim in any such
proceeding) before the Holders of Notes will be entitled to receive any payment
or distribution with respect to the Notes (except that Holders of Notes may
receive and retain Permitted Junior Securities and payments made from any
trust, if any, created pursuant to Section 401 or 1304 hereof); and


 


until
all Obligations with respect to Senior Indebtedness of the Company (as provided
in clause (1) above) are paid in full, any distribution to which Holders would
be entitled but for this Article 14 will be made to holders of Senior
Indebtedness of the Company (except that Holders of Notes may receive and
retain Permitted Junior Securities and payments made


 


121

















 


from
the trust, if any, created pursuant to Section 401 or 1304 hereof), as
their interests may appear.


 


SECTION 1403.  Default on Designated Senior Indebtedness.


 


(a)                                  The Company may not make any payment or
distribution in respect of the Notes (except in the form of Permitted Junior
Securities or from any trust, if any, created pursuant to Section 401 or
1304 hereof) and may not make any deposits with the Trustee pursuant to
Articles 4 or 13 hereof if:


 


(1)                                  a payment default on Designated Senior
Indebtedness of the Company occurs and is continuing beyond any applicable
grace period; or


 


(2)                                  any other default occurs and is continuing on
any series of Designated Senior Indebtedness of the Company that permits
holders of that series of Designated Senior Indebtedness of the Company to
accelerate its maturity, and the Trustee receives a notice of such default (a “Payment Blockage Notice”) from the Company
or the Representative of any Designated Senior Indebtedness of the
Company.  If the Trustee receives any
such Payment Blockage Notice, no subsequent Payment Blockage Notice may be
delivered or will be effective for purposes of this Section 1403 unless
and until (A) at least 360 days have elapsed since the delivery of the
immediately prior Payment Blockage Notice, and (B) all scheduled payments of
principal, interest and premium and Special Interest, if any, on the Notes that
have come due have been paid in full in cash.


 


Notwithstanding
the foregoing, the Company may make payment on the Notes if the Company and the
Trustee receive written notice approving such payment from the Representative
of the Designated Senior Indebtedness of the Company with respect to which
either of the events set forth in clauses (1) and (2) above has occurred and is
continuing.


 


Not
more than one Payment Blockage Notice may be given in any consecutive 365-day
period, irrespective of the number of defaults with respect to all Designated
Senior Indebtedness of the Company during such period, provided that if any Payment Blockage
Notice is delivered to the Trustee by or on behalf of the holders of Designated
Senior Indebtedness of the Company (other than the holders of Indebtedness
under the Senior Credit Facilities), a Representative of holders of
Indebtedness under the Senior Credit Facilities may give another Payment
Blockage Notice within such period. However, in no event may the total number
of days during which any Payment Blockage Period or periods on the Notes is in
effect exceed 179 days in the aggregate during any consecutive 365-day period,
and there must be at least 186 days during any consecutive 365-day period
during which no Payment Blockage Period is in effect.


 


The
failure to make any payment on the Notes by reason of this Article 14 will
not be construed as preventing the occurrence of an Event of Default with
respect to the Notes by reason of the failure to make a required payment. Upon
termination of any period of payment blockage, the Company will be required to
resume making any and all required payments under the Notes, including any
missed payments. No nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee will be, or be
made, the basis for a subsequent Payment Blockage Notice.


 


122

















 


(b)                                 The Company may and will resume payments on
and distributions in respect of the Notes and may acquire them upon the earlier
of:


 


(1)                                  in the case of a payment default on
Designated Senior Indebtedness, upon the date on which such default is cured or
waived; and


 


(2)                                  in the case of a nonpayment default on
Designated Senior Indebtedness, upon the earlier of the date on which such
nonpayment default is cured or waived or 179 days after the date on which the
applicable Payment Blockage Notice is received, unless the maturity of any
Designated Senior Indebtedness of the Company has been accelerated,


 


(c)                                  if this Article 14 otherwise permits the
payment, distribution or acquisition at the time of such payment or
acquisition.  Notwithstanding the
foregoing, the Company may make payment on the Notes if the Company and the
Trustee receive written notice approving such payment from the Representative
of the Designated Senior Indebtedness of the Company with respect to which
either of the events set forth in clauses (1) and (2) of this paragraph has
occurred and is continuing.


 


SECTION 1404.  Acceleration of Notes.


 


If
payment of the Notes is accelerated because of an Event of Default, the Company
will promptly notify the Representative of Designated Senior Indebtedness of
the acceleration.


 


SECTION 1405.  When Distribution Must Be Paid Over.


 


If
the Trustee or any Holder receives a payment in respect of the Notes (except in
Permitted Junior Securities or from any trust, if any, created pursuant to
Section 401 or 1304 hereof) when: (1) the payment is prohibited by this
Article 14; and (2) the Trustee or such Holder, as applicable, has actual
knowledge that such payment is prohibited by this Article 14, then such
payment will be held by the Trustee or such Holder, as applicable, in trust for
the benefit of, and will be paid forthwith over and delivered, upon written
request, to, the holders of Senior Indebtedness of the Company as their
interests may appear or their Representative under the agreement, indenture or
other document (if any) pursuant to which Senior Indebtedness of the Company
may have been issued, as their respective interests may appear, for application
to the payment of all Obligations with respect to Senior Indebtedness of the
Company remaining unpaid to the extent necessary to pay such Obligations in
full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness of the
Company.


 


SECTION 1406.  Notice by Company.


 


The
Company will promptly notify the Trustee and the Paying Agent of any facts
known to the Company that would cause a payment of any Obligations with respect
to the Notes to violate this Article 14, but failure to give such notice
will not affect the subordination of the Notes to the Senior Indebtedness as
provided in this Article 14.


 


123

















 


SECTION 1407.  Subrogation.


 


After
all Senior Indebtedness is paid in full and until the Notes are paid in full,
Holders of Notes will be subrogated (equally and ratably with all other
Indebtedness pari passu with the
Notes) to the rights of holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that distributions otherwise
payable to the Holders of Notes have been applied to the payment of Senior
Indebtedness.  A distribution made under
this Article 14 to holders of Senior Indebtedness that otherwise would
have been made to Holders of Notes is not, as between the Company and Holders,
a payment by the Company on the Notes.


 


SECTION 1408.  Relative Rights.


 


This
Article 14 defines the relative rights of Holders of Notes and holders of
Senior Indebtedness.  Nothing in this
Indenture will:


 


(1)                                  impair, as between the Company and Holders of
Notes, the obligation of the Company, which is absolute and unconditional, to
pay principal of, premium and interest and Special Interest, if any, on the
Notes in accordance with their terms;


 


(2)                                  affect the relative rights of Holders of
Notes and creditors of the Company other than their rights in relation to
holders of Senior Indebtedness; or


 


(3)                                  prevent the Trustee or any Holder of Notes
from exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders of Notes.


 


(b)                                 If the Company fails because of this
Article 14 to pay principal of, premium or interest or Special Interest,
if any, on a Note on the due date, the failure is still a Default or Event of
Default.


 


SECTION 1409.  Subordination May Not Be Impaired by Company. No right of any holder of Senior
Indebtedness to enforce the subordination of the Indebtedness evidenced by the
Notes may be impaired by any act or failure to act by the Company or any Holder
or by the failure of the Company or any Holder to comply with this Indenture.


 


SECTION 1410.  Distribution or Notice to Representative.


 


Whenever
a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative.


 


Upon
any payment or distribution of assets of the Company referred to in this
Article 14, the Trustee and the Holders of Notes will be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon
any certificate of such Representative or of the liquidating trustee or agent
or other Person making any distribution to the Trustee or to the Holders of
Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the


 


124

















 


amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 14.


 


SECTION 1411.  Rights of Trustee and Paying Agent.


 


Notwithstanding
the provisions of this Article 14 or any other provision of this
Indenture, the Trustee will not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment or distribution by the
Trustee, and the Trustee and the Paying Agent may continue to make payments on
the Notes, unless the Trustee has received at its Corporate Trust Office at
least five Business Days prior to the date of such payment written notice of
facts that would cause the payment of any Obligations with respect to the Notes
to violate this Article 14.  Only
the Company or a Representative may give the notice.  Nothing in this Article 14 will impair the claims of, or
payments to, the Trustee under or pursuant to Section 607 hereof.


 


The
Trustee in its individual or any other capacity may hold Senior Indebtedness
with the same rights it would have if it were not Trustee.  Any Agent may do the same with like rights.


 


SECTION 1412.  Authorization to Effect Subordination.


 


Each
Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the
Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this
Article 14, and appoints the Trustee to act as such Holder’s
attorney-in-fact for any and all such purposes.  If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 607
hereof at least 30 days before the expiration of the time to file such claim,
the Representatives are hereby authorized to file an appropriate claim for and
on behalf of the Holders of the Notes.


 


SECTION 1413.  Trustee Not Fiduciary for Holders of Senior Indebtedness.


 


The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if the Trustee shall
in good faith mistakenly pay over or distribute to Holders of Notes or to the
Company or to any other person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.  With respect
to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are specifically set forth
in this Article and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.


 


125

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.


 


 


	
   

  	
  SEALY
  MATTRESS COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/    Kenneth L. Walker

  	
   

  
	
   

  	
   

  	
  Name:  Kenneth L. Walker

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President, General Counsel

  and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SEALY
  CORPORATION

  
	
   

  	
   

  	
  SEALY MATTRESS COMPANY OF

  PUERTO RICO

  
	
   

  	
   

  	
  OHIO-SEALY MATTRESS

  MANUFACTURING CO., INC.

  
	
   

  	
   

  	
  OHIO-SEALY MATTRESS

  MANUFACTURING CO.

  
	
   

  	
   

  	
  SEALY MATTRESS COMPANY OF

  MICHIGAN, INC.

  
	
   

  	
   

  	
  SEALY MATTRESS COMPANY OF

  KANSAS CITY, INC.

  
	
   

  	
   

  	
  SEALY OF MARYLAND AND VIRGINIA,

  INC.

  
	
   

  	
   

  	
  SEALY MATTRESS COMPANY OF

  ILLINOIS

  
	
   

  	
   

  	
  A. BRANDWEIN & CO.

  
	
   

  	
   

  	
  SEALY MATTRESS COMPANY OF

  ALBANY, INC.

  
	
   

  	
   

  	
  SEALY OF MINNESOTA, INC.

  
	
   

  	
   

  	
  SEALY MATTRESS COMPANY OF

  MEMPHIS

  
	
   

  	
   

  	
  NORTH AMERICAN BEDDING COMPANY

  
	
   

  	
   

  	
  MATTRESS HOLDINGS INTERNATIONAL

  LLC

  
	
   

  	
   

  	
  SEALY, INC.

  
	
   

  	
   

  	
  THE OHIO MATTRESS COMPANY

  LICENSING AND COMPONENTS

  GROUP

  
	
   

  	
   

  	
  SEALY MATTRESS MANUFACTURING

  COMPANY, INC.

  
	
   

  	
   

  	
  SEALY-KOREA, INC.

  
					



 


126

















 


	
   

  	
   

  	
  SEALY TECHNOLOGY LLC

  
	
   

  	
   

  	
  SEALY REAL ESTATE, INC.

  
	
   

  	
   

  	
  SEALY TEXAS MANAGEMENT, INC.

  
	
   

  	
   

  	
  SEALY TEXAS HOLDINGS LLC

  
	
   

  	
   

  	
  SEALY TEXAS L.P.

  
	
   

  	
   

  	
  WESTERN MATTRESS COMPANY

  
	
   

  	
   

  	
  ADVANCED SLEEP PRODUCTS,

  
	
   

  	
   

  	
  SEALY COMPONENTS—PADS, INC.

  
	
   

  	
   

  	
  SEALY MATTRESS COMPANY OF S.W.

  VIRGINIA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/    Kenneth L. Walker

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: 

  



 


127

















 


	
   

  	
   

  	
  THE
  BANK OF NEW YORK TRUST

  COMPANY, N.A.

  
	
   

  	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/    Derek Kettel

  	
   

  
	
   

  	
   

  	
  Name:  Derek Kettel

  
	
   

  	
   

  	
  Title:  Vice President

  



 


1

















 


Schedule I


 


Sealy
Corporation

Sealy Mattress Company of Puerto Rico

Ohio-Sealy Mattress Manufacturing Co., Inc.

Ohio-Sealy Mattress Manufacturing Co.

Ohio-Sealy Mattress Manufacturing Co. (Mass.)

Sealy Mattress Company of Michigan, Inc.

Sealy Mattress Company of Kansas City, Inc.

Sealy of Maryland and Virginia, Inc.

Sealy Mattress Company of Illinois

A. Brandwein & Co.

Sealy Mattress Company of Albany, Inc.

Sealy of Minnesota, Inc.

Sealy Mattress Company of Memphis

North American Bedding Company

Mattress Holdings International LLC

Sealy, Inc.

The Ohio Mattress Company Licensing  and
Components Group

Sealy Mattress Manufacturing Company, Inc.

Sealy-Korea, Inc.

Sealy Technology LLC

Sealy Real Estate, Inc.

Sealy Texas Management, Inc.

Sealy Texas Holdings LLC

Sealy Texas L.P.

Western Mattress Company

Advanced Sleep Products

Sealy Components—Pads, Inc.

Sealy Mattress Company of S.W. Virginia


 


2

















 


EXHIBIT A


 


[FACE OF NOTE]


 


SEALY MATTRESS COMPANY


 


8.25% Senior Subordinated Note due 2014


 


	
  No.

  	
   

  	
  CUSIP
  No. 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  
				



 


 


SEALY
MATTRESS COMPANY, an Ohio corporation (the “Company”, which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, promises to pay to
                         ,
or its registered assigns, the principal sum of
                                                                       
Dollars ($                         ),
on June 15, 2014.


 


	
  Interest
  Rate:

  	
   

  	
  8.25%
  per annum.

  
	
  Interest
  Payment Dates:

  	
   

  	
  June 15
  and December 15 of each year commencing December 15, 2004.

  
	
  Regular
  Record Dates:

  	
   

  	
  June 1
  and December 1 of each year.

  



 


Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.


 

















 


IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officers.


 


 


	
   

  	
  SEALY
  MATTRESS COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


(Form of Trustee’s Certificate of Authentication)


 


 


This
is one of the 8.25% Senior Subordinated Notes due 2014 referred to in the
within-mentioned Indenture.


 


 


	
   

  	
  THE BANK OF NEW YORK TRUST

  COMPANY, N.A.

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  
					



 

















 


[REVERSE SIDE OF NOTE]


 


SEALY MATTRESS COMPANY


 


8.25% Senior Subordinated Note due 2014


 


 


1.                                       Principal and Interest; Subordination.


 


The
Company will pay the principal of this Note on June 15, 2014.


 


The
Company promises to pay interest and Special Interest, if any, on the principal
amount of this Note on each Interest Payment Date, as set forth below, at the
rate of 8.25% per annum [(subject to adjustment as provided below)] [except
that interest accrued on this Note pursuant to the fourth paragraph of this
Section 1 for periods prior to the applicable dates on which the Exchange
Offer Registration Statement or Shelf Registration Statement (as such terms are
defined in the Registration Rights Agreement referred to below) will accrue at
the rate or rates borne by the Notes from time to time during such periods].(1)


 


Interest,
and Special Interest, if any, will be payable semi-annually (to the Holders of
record of the Notes (or any Predecessor Notes)) at the close of business on
June 1 or December 1 immediately preceding the Interest Payment Date)
on each Interest Payment Date, commencing December 1, 2004.


 


The
Holder of this Note is entitled to the benefits of the Registration Rights
Agreement, dated April 6, 2004, among the Company, the Guarantors and the
Initial Purchasers named therein (the “Registration Rights Agreement”).(2)


 


Interest
on this Note will accrue from the most recent date to which interest has been
paid [on this Note or the Note surrendered in exchange herefor](3) or, if no
interest has been paid, from April 6, 2004; provided that, if there is no existing default in the
payment of interest and if this Note is authenticated between a Regular Record
Date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such Interest Payment Date.  Interest will be computed on the basis of a
360-day year of twelve 30-day months.


 


The
Company shall pay interest and Special Interest if any, on overdue principal
and premium, if any, and interest on overdue installments of interest, to the
extent lawful, at a rate per annum equal to the rate of interest applicable to
the Notes.


 


The
indebtedness evidenced by the Notes is, to the extent and in the manner
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Note is issued
subject to such provisions.  Each Holder
of this Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b)


 












(1)                                  Include only for Exchange note.


(2)                                  Include only for Initial Note.


(3)                                  Include only for Exchange Note.


 

















 


authorizes
and directs the Trustee on its behalf to take such action as may be necessary
or appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee its attorney-in-fact for such purpose.


 


2.                                       Method of Payment.


 


The
Company will pay interest (except defaulted interest) on the principal amount
of the Notes on each June 15 and December 15 to the Persons who are
Holders (as reflected in the Note Register at the close of business on
June 1 and December 1 immediately preceding the Interest Payment
Date), in each case, even if the Note is cancelled on registration of transfer
or registration of exchange after such Regular Record Date; provided that, with respect to the payment
of principal, the Company will make payment to the Holder that surrenders this
Note to any Paying Agent on or after June 15, 2014.


 


The
Company will pay principal (premium, if any) and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts.  However, the Company
may pay principal (premium, if any) and interest by its check payable in such
money.  The Company may pay interest on
the Notes either (a) by mailing a check for such interest to a Holder’s registered
address (as reflected in the Note Register) or (b) by wire transfer to an
account located in the United States maintained by the payee.  If a payment date is a date other than a
Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.


 


3.                                       Paying Agent and Note Registrar.


 


Initially,
the Trustee will act as Paying Agent and Note Registrar.  The Company may change any Paying Agent or Note
Registrar upon written notice thereto. 
The Company, any Subsidiary or any Affiliate of any of them may act as
Paying Agent, Note Registrar or co-registrar.


 


4.                                       Indenture; Limitations.


 


The
Company issued the Notes under an Indenture dated as of April 6, 2004 (the
“Indenture”), among the Company, the Guarantors and The Bank of New York Trust
Company, N.A., as trustee (the “Trustee”). 
Capitalized terms herein are used as defined in the Indenture unless
otherwise indicated.  The terms of the
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act.  The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.  To the extent permitted by applicable law,
in the event of any inconsistency between the terms of this Note and the terms
of the Indenture, the terms of the Indenture shall control.


 


The
Notes are unsecured senior subordinated obligations of the Company.  The Indenture does not limit the aggregate
principal amount of the Notes.


 

















 


5.                                       Redemption.


 


Optional
Redemption.  Except as described below, the Notes are not
redeemable at the Company’s option until 
June 15, 2009.   From and
after June 15, 2009, the Company may redeem the Notes, in whole or in
part, upon not less than 30 nor more than 60 days’ prior notice by first class
mail, postage prepaid, with a copy to the Trustee, to each Holder of Notes to
the address of such Holder appearing in the Note Register at the Redemption
Prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest thereon and Special Interest, if any, to the
applicable redemption date, subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date, if redeemed during the twelve-month period beginning on June 15 of
each of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2009

  	
   

  	
  104.125

  	
  %

  
	
  2010

  	
   

  	
  102.750

  	
  %

  
	
  2011

  	
   

  	
  101.375

  	
  %

  
	
  2012
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


In
addition, prior to June 15, 2007, the Company may, at its option, redeem
up to 40% of the aggregate principal amount of Notes issued under the Indenture
at a redemption price equal to 108.250% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon and Special Interest, if any,
to the Redemption Date, subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date, with the net proceeds of one or more Equity Offerings of the Company or
any direct or indirect parent of the Company to the extent such net proceeds
are contributed to the Company; provided that
at least 60% of the sum of the aggregate principal amount of Notes originally
issued under the Indenture remains outstanding immediately after the occurrence
of each such redemption; provided further that
each such redemption occurs within 90 days of the date of closing of each such
Equity Offering.


 


At
any time prior to June 15, 2009, the Company may also redeem all or a part
of the Notes, upon not less than 30 nor more than 60 days’ prior notice mailed
by first-class mail to each Holder’s registered address, at a Redemption Price
equal to 100% of the principal amount of notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest and Special Interest, if any, to
the Redemption Date, subject to the rights of Holders of Notes on the relevant
record date to receive interest due on the relevant Interest Payment Date.


 


6.                                       Repurchase upon a Change in Control and Asset
Sales.


 


Upon
the occurrence of (a) a Change in Control, the Holders of the Notes will have
the right to require that the Company purchase such Holder’s outstanding Notes,
in whole or in part, at a purchase price of 101% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest, if any, to the
date of purchase and (b) Asset Sales, the Company may be obligated to make
offers to purchase Notes and Pari Passu Indebtedness with a portion of


 

















 


the
Net Proceeds of such Asset Sales at a redemption price of 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase.


 


7.                                       Denominations; Transfer; Exchange.


 


The
Notes are in registered form without coupons, in denominations of $1,000 and
multiples of $1,000 in excess thereof. 
A Holder may register the transfer or exchange of Notes in accordance
with the Indenture.  The Note Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture.  The Note
Registrar need not register the transfer or exchange of any Notes selected for
redemption (except the unredeemed portion of any Note being redeemed in part).


 


8.                                       Persons Deemed Owners.


 


A
registered Holder may be treated as the owner of a Note for all purposes.


 


9.                                       Unclaimed Money.


 


If
money for the payment of principal (premium, if any) or interest remains
unclaimed for two years, the Trustee and the Paying Agent will pay the money
back to the Company at its written request. 
After that, Holders entitled to the money must look to the Company for
payment, unless an abandoned property law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.


 


10.                                 Discharge and Defeasance Prior to Redemption
or Maturity.


 


If
the Company irrevocably deposits, or causes to be deposited, with the Trustee
money or Government Securities sufficient to pay the then outstanding principal
of (premium, if any) and accrued interest on the Notes (a) to Redemption or
Maturity Date, the Company will be discharged from its obligations under the
Indenture and the Notes, except in certain circumstances for certain covenants
thereof, and (b) to the Stated Maturity, the Company will be discharged from
certain covenants set forth in the Indenture.


 


11.                                 Amendment; Supplement; Waiver.


 


Subject
to certain exceptions, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the Outstanding Notes, and any existing Default
or compliance with any provision may be waived with the consent of the Holders
of a majority in aggregate principal amount of the Outstanding Notes.  Without notice to or the consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency and make
any change that does not adversely affect the rights of any Holder.


 

















 


12.                                 Restrictive Covenants.


 


The
Indenture contains certain covenants, including, without limitation, covenants
with respect to the following matters: 
(i) Incurrence of Indebtedness and Issuance of Disqualified Stock; (ii)
Restricted Payments; (iii) transactions with Affiliates; (iv) Liens; (v)
purchase of Notes upon a Change in Control; (vi) disposition of proceeds of
Asset Sales; (vii) guarantees of Indebtedness by Restricted Subsidiaries; (viii)
dividend and other payment restrictions affecting Restricted Subsidiaries; (ix)
merger and certain transfers of assets; and (x) limitation on Senior
Subordinated Indebtedness.  Within 120
days (or the successor time period then in effect under the rules and
regulations of the Exchange Act) after the end of each fiscal year, the Company
must report to the Trustee on compliance with such limitations.


 


13.                                 Successor Persons.


 


When
a successor Person or other entity assumes all the obligations of its predecessor
under the Notes and the Indenture, the predecessor Person will be released from
those obligations.


 


14.                                 Remedies for Events of Default.


 


If
an Event of Default, as defined in the Indenture, occurs and is continuing, the
Trustee or the Holders of at least 30% in principal amount of the Outstanding
Notes may declare all the Notes to be immediately due and payable.  If a bankruptcy or insolvency default with
respect to the Company or any of its Significant Subsidiaries occurs and is
continuing, the Notes automatically become immediately due and payable.  Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. 
The Trustee may require indemnity reasonably satisfactory to it before
it enforces the Indenture or the Notes. 
Subject to certain limitations, Holders of at least a majority in
aggregate principal amount of the Outstanding Notes may direct the Trustee in
its exercise of any trust or power.


 


15.                                 Guarantees.


 


The
Company’s obligations under the Notes are fully, irrevocably and
unconditionally guaranteed on an unsecured senior subordinated basis, to the
extent set forth in the Indenture, by each of the Guarantors.


 


16.                                 Trustee Dealings with Company.


 


The
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may make loans to, accept deposits
from, perform services for, and otherwise deal with, the Company and its
Affiliates as if it were not the Trustee.


 


17.                                 Authentication.


 


This
Note shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Note.


 

















 


18.                                 Abbreviations.


 


Customary
abbreviations may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).


 


The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture.  Requests may be
made to Sealy Mattress Company, One Office Parkway, Trinity, North Carolina
27230, Attention:  General Counsel.


 

















 


ASSIGNMENT FORM


To
assign this Note, fill in the form below:


 


	
  (I)
  or (we) assign and transfer this Note to:

  
	
   

  	
  (Insert
  assignee’s legal name)

  
	
   

  
	
  (Insert assignee’s soc. sec. or tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and zip code)

  
	
  and
  irrevocably appoint

  
	
  to
  transfer this Note on the books of the Company.  The agent may substitute another to act for him.

  



 


	
  Date:

  	
   

  	
   

  



 


	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
				



 


 


	
  Signature
  Guarantee*:

  	
   

  	
   

  



 












*                                         Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).


 

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased by the Company pursuant to
Section 1017 or 1018 of the Indenture, check the appropriate box below:


 


	
  o Section 1017

  	
  o Section 1018

  



 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 1017 or Section 1018 of the Indenture, state the
amount you elect to have purchased:


 


$                 


 


	
  Date:

  	
   

  	
   

  



 


	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax
  Identification No.:

  	
   

  
					



 


 


	
  Signature
  Guarantee*:

  	
   

  	
   

  



 












*                                         Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).


 

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *


 


The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:


 


	
  Date of
  Exchange

  	
   

  	
  Amount
  of decrease in

  Principal Amount

  of

  this Global Note

  	
   

  	
  Amount
  of increase in

  Principal Amount

  of

  this Global Note

  	
   

  	
  Principal
  Amount

  of this Global Note

  following such

  decrease

  (or increase)

  	
   

  	
  Signature
  of authorized

  signatory of Trustee or

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












*                                         This schedule should
be included only if the Note is issued in global form.


 

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


Sealy
Mattress Company

One Office Parkway

Trinity, North Carolina 27370


 


The
Bank of New York Trust Company, N.A.

10161 Centurion Parkway

Jacksonville, Florida 32256


 


 


Re:  8.25% Senior Subordinated Notes due 2014


 


Reference
is hereby made to the Indenture, dated as of April 6, 2004 (the “Indenture”), among Sealy Mattress Company,
as issuer (the “Company”), the
Guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.


 


                                   ,
(the “Transferor”) owns and
proposes to transfer the Note[s] or interest in such Note[s] specified in Annex
A hereto, in the principal amount of
$                              
in such Note[s] or interests (the “Transfer”),
to
                                                                           
(the “Transferee”), as further
specified in Annex A hereto.  In
connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.  o  Check
if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Restricted Definitive Note pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the Securities Act of 1933, as amended
(the “Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and
each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such
Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States.  Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note
and in the Indenture and the Securities Act.


 


2.  o  Check
if Transferee will take delivery of a beneficial interest in the Regulation S Global
Note or a Restricted Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not


 

















 


being
made to a Person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the Transferee
was outside the United States or (y) the transaction was executed in, on or
through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed selling
efforts have been made in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.


 


3.  o  Check
and complete if Transferee will take delivery of a beneficial interest in the
IAI Global Note or a Restricted Definitive Note pursuant to any provision of
the Securities Act other than Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any
state of the United States, and accordingly the Transferor hereby further
certifies that (check one):


 


(a)                                  o  such
Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;


 


or


 


(b)                                 o  such
Transfer is being effected to the Company or a subsidiary thereof;


 


or


 


(c)                                  o  such
Transfer is being effected pursuant to an effective registration statement under
the Securities Act and in compliance with the prospectus delivery requirements
of the Securities Act;


 


or


 


(d)                                 o  such
Transfer is being effected to an Institutional Accredited Investor and pursuant
to an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within
the meaning of Regulation D under the Securities Act and the Transfer complies
with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of Exhibit D to the


 

















 


Indenture
and (2) if such Transfer is in respect of a principal amount of Notes at the
time of transfer of less than $250,000, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act.  Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI Global
Note and/or the Restricted Definitive Notes and in the Indenture and the
Securities Act.


 


4.  o  Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.


 


(a)  o  Check if
Transfer is pursuant to Rule 144. 
(i) The Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


(b)  o  Check if
Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


(c)  o  Check if
Transfer is Pursuant to Other Exemption.  (i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.


 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.


 

















 


	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
						



 

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.                                       The Transferor owns and proposes to transfer
the following:


 


[CHECK
ONE OF (a) OR (b)]


 


(i)             o 
a beneficial interest in the:


 


(i)                               o   
144A Global Note (CUSIP
                  ),
or


 


(ii)                            o   
Regulation S Global Note (CUSIP
                  ),
or


 


(iii)                         o   
IAI Global Note (CUSIP
                  );
or


 


(b)  o    a Restricted Definitive Note.


 


2.                                       After the Transfer the Transferee will hold:


 


[CHECK
ONE]


 


(a)  o  a beneficial interest in the:


 


(i)                               o   
144A Global Note (CUSIP
                  ),
or


 


(ii)                            o   
Regulation S Global Note (CUSIP
                  ),
or


 


(iii)                         o   
IAI Global Note (CUSIP
                  );
or


 


(iv)                        o   
Unrestricted Global Note (CUSIP                   );
or


 


(b)  o    a Restricted Definitive Note; or


 


(c)  o    an Unrestricted Definitive Note,


 


in
accordance with the terms of the Indenture.


 

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


Sealy
Mattress Company

One Office Parkway

Trinity, North Carolina 27370


 


The
Bank of New York Trust Company, N.A.

10161 Centurion Parkway

Jacksonville, Florida 32256


 


Re:  8.25% Senior Subordinated Notes due 2014


 


(CUSIP
             )


 


Reference
is hereby made to the Indenture, dated as of April 6, 2004 (the “Indenture”), among Sealy Mattress Company,
as issuer (the “Company”), the
Guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.


 


                                                     
, (the “Owner”) owns and proposes
to exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of
$                      
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.                                       Exchange of Restricted
Definitive Notes or Beneficial Interests in a Restricted Global Note for
Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global
Note


 


(a)  o                Check if Exchange is from
beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a beneficial interest
in an Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.


 


(b)  o               Check if Exchange is from
beneficial interest in a Restricted Global Note to Unrestricted Definitive Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i)
the Definitive Note is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities


 

















 


Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


(c)  o                Check if Exchange is from
Restricted Definitive Note to beneficial interest in an Unrestricted Global
Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


(d)  o               Check if Exchange is from
Restricted Definitive Note to Unrestricted Definitive Note.  In
connection with the Owner’s Exchange of a Restricted Definitive Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


2.                                       Exchange of Restricted
Definitive Notes or Beneficial Interests in Restricted Global Notes for
Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes


 


(a)  o                Check if Exchange is from
beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Note is being
acquired for the Owner’s own account without transfer.  Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.


 


(b)  o               Check if Exchange is from
Restricted Definitive Note to beneficial interest in a Restricted Global Note.  In
connection with the Exchange of the Owner’s Restricted Definitive Note for a
beneficial interest in the [CHECK ONE] o 144A
Global Note, o Regulation S Global Note,  o IAI
Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United


 

















 


States.  Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the beneficial interest issued
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.


 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
							



 

















 


EXHIBIT D


 


FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


Sealy
Mattress Company

One Office Parkway

Trinity, North Carolina 27370


 


The
Bank of New York Trust Company, N.A.

10161 Centurion Parkway

Jacksonville, Florida 32256


 


Re:  8.25% Senior Subordinated Notes due 2014


 


Reference
is hereby made to the Indenture, dated as of April 6, 2014 (the “Indenture”), among Sealy Mattress Company,
as issuer (the “Company”), the
guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.


 


In
connection with our proposed purchase of
$                      
aggregate principal amount of:


 


(a)          o            a
beneficial interest in a Global Note, or


 


(b)         o            a
Definitive Note,


 


we
confirm that:


 


1.                                       We understand that any subsequent transfer of
the Notes or any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by, and not
to resell, pledge or otherwise transfer the Notes or any interest therein
except in compliance with, such restrictions and conditions and the Securities
Act of 1933, as amended (the “Securities Act”).


 


2.                                       We understand that the offer and sale of the
Notes have not been registered under the Securities Act, and that the Notes and
any interest therein may not be offered or sold except as permitted in the
following sentence.  We agree, on our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell the Notes or any interest therein, we will do so
only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A
under the Securities Act to a “qualified institutional buyer” (as defined
therein), (C) to an institutional “accredited investor” (as defined below)
that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to you and to the Company a signed letter substantially in
the form of this letter and, if such transfer is in respect of a principal
amount of Notes, at the time of transfer of less than $250,000, an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act,
(E) pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and


 

















 


we
further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.


 

















 


3.                                       We understand that, on any proposed resale of
the Notes or beneficial interest therein, we will be required to furnish to you
and the Company such certifications, legal opinions and other information as
you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. 
We further understand that the Notes purchased by us will bear a legend
to the foregoing effect.


 


4.                                       We are an institutional “accredited investor”
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.


 


5.                                       We are acquiring the Notes or beneficial
interest therein purchased by us for our own account or for one or more
accounts (each of which is an institutional “accredited investor”) as to each
of which we exercise sole investment discretion.


 


You
and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Accredited Investor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 

















 


EXHIBIT E


 


[FORM OF NOTATION OF GUARANTEE]


 


For
value received, each Guarantor (which term includes any successor Person under
the Indenture) has, jointly and severally, unconditionally guaranteed, to the
extent set forth in the Indenture and subject to the provisions in the
Indenture dated as of April 6, 2004 (the “Indenture”)
among Sealy Mattress Company, (the “Company”),
the Guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee (the “Trustee”), (a) the
due and punctual payment of the principal of, premium and Special Interest, if
any, and interest on, the Notes, whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal of and interest on the Notes, if any, if lawful, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee all in accordance with the terms of the Indenture and (b) in case
of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. 
The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article 12 of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Note Guarantee. 
Each Holder of a Note, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee, on behalf of
such Holder, to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee attorney-in-fact of such Holder for such purpose; provided, however, that the Indebtedness
evidenced by this Note Guarantee shall cease to be so subordinated and subject
in right of payment upon any defeasance of this Note in accordance with the
provisions of the Indenture.


 


Capitalized
terms used but not defined herein have the meanings given to them in the
Indenture.


 


 


	
   

  	
  [NAME
  OF GUARANTOR(S)]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT F


 


FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”),
dated as of
                               ,
200    , among                                       
(the “Guaranteeing Subsidiary”),
a subsidiary of                                        
(or its permitted successor), a [Delaware] corporation (the “Company”), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and The Bank of New
York Trust Company, N.A., as trustee under the Indenture referred to below (the
“Trustee”).


 


W I T N E S S E T H


 


WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
(the “Indenture”), dated as of
April 6, 2004 providing for the issuance of 8.25% Senior Subordinated
Notes due 2014 (the “Notes”);


 


WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Company’s Obligations under the Notes and the Indenture on the terms
and conditions set forth herein (the “Guarantee”);
and


 


WHEREAS,
pursuant to Section 901 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.


 


NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:


 


1.                                       CAPITALIZED TERMS.  Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.


 


2.                                       AGREEMENT TO GUARANTEE.  The Guaranteeing Subsidiary hereby agrees to
provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited
to Article 12 thereof.


 


4.                                       NO RECOURSE AGAINST OTHERS.  No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as
such, shall have any liability for any obligations of the Company or any
Guaranteeing Subsidiary under the Notes, any Note Guarantees, the Indenture or
this Supplemental Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. 
Each Holder of the Notes by accepting a Note waives and releases all
such liability.  The waiver and release
are part of the consideration for issuance of the Notes.  Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the SEC
that such a waiver is against public policy.


 

















 


5.                                       NEW YORK LAW TO GOVERN.  THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


6.                                       COUNTERPARTS.  The parties may sign any number of copies of this Supplemental
Indenture.  Each signed copy shall be an
original, but all of them together represent the same agreement.


 


7.                                       EFFECT OF HEADINGS.  The Section headings herein are for convenience only and
shall not affect the construction hereof.


 


8.                                       THE TRUSTEE. 
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or
in respect of the recitals contained herein, all of which recitals are made
solely by the Guaranteeing Subsidiary and the Company.


 

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and attested, all as of the date first above written.


 


 


	
   

  	
  Dated:

  	
   

  	
  ,
  20

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  SEALY
  MATTRESS COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [EXISTING
  GUARANTORS]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK TRUST COMPANY, N.A.,

  
	
   

  	
    as Trustee

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  	
   

  



 

















 


EXHIBIT G


 


INCUMBENCY CERTIFICATE


 


The
undersigned,
                        ,
being the
                        
of
                        
(the “Company”) does hereby certify that the individuals listed below are
qualified and acting officers of the Company as set forth in the right column
opposite their respective names and the signatures appearing in the extreme
right column opposite the name of each such officer is a true specimen of the
genuine signature of such officer and such individuals have the authority to
execute documents to be delivered to, or upon the request of, The Bank of New
York Trust Company, N.A. as Trustee under the Indenture dated as of
                     
, 20    , by and between the Company and The Bank of New York
Trust Company, N.A.


 


	
  Name

  	
   

  	
  Title

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate as of the          
day of
              
, 20    .


 


	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: